Preamble

The House met at half-past Two o'clock

PRAYERS

[MADAM SPEAKER in the Chair]

PRIVATE BUSINESS

CITY OF LONDON (WARD ELECTIONS) BILL (BY ORDER)

Order for further consideration, as amended, read.

To be further considered on Wednesday 12 April.

Oral Answers to Questions — CABINET OFFICE

The Minister was asked—

Countryside Policy

Mr. Jim Dobbin: What progress is being made in developing a cross-departmental policy for the countryside.[116384]

The Minister for the Cabinet Office (Marjorie Mowlam): The Government's countryside policy will be set out in detail in the rural White Paper to be published later this year.

Mr. Dobbin: I thank my right hon. Friend for that response. I recognise the positive steps proposed in the Government's legislation to improve access to the countryside for the public and at the same time to protect existing rural amenities. Will my right hon. Friend endeavour to encourage Departments to recognise and support the constructive and helpful contribution made by farming and other rural industries to that process?

Marjorie Mowlam: I thank my hon. Friend. We will do exactly that. In preparation for the completion of the rural White Paper, we are trying to ensure that all Departments are signed up to the parts that they will implement. The Ministerial Committee on Rural Affairs, which I Chair, will ensure that all Departments think in terms not just of the rural White Paper, but of other legislation with a rural dimension. As a result, I hope that farming families, who have faced many serious difficulties, will be helped by my right hon. Friend the Prime Minister's £200 million package—and he met them last week. Efforts are also being made to help people in rural communities to diversify economically and to give them a broader base from which to work.

Mr. David Tredinnick: Does the right hon. Lady accept that one of the problems of the countryside

is that younger people often feel that they have very little to do? When she holds the discussions with other Departments, will she bear in mind that recreation facilities are very important in rural areas and that there is a feeling—certainly in my constituency—that there are not enough of them?

Marjorie Mowlam: I welcome the hon. Gentleman's contribution. Our policies, such as the new deal in rural communities, aim to find work for young and older people. Work is the first priority for young people.
The hon. Gentleman made a specific point about leisure amenities. One of the advantages of the Committee that I Chair is that it receives representations across Departments. As a result, we can deal with the difficulties of education, leisure and unemployment that young people face. I hope that we can have a bigger impact on rural communities and on the difficulties that many of them face.

Mr. Mark Todd: Does my right hon. Friend agree that one of the critical issues in putting together the rural White Paper is to provide one-stop advice for farmers seeking to diversify and enhance their businesses in various ways? That means providing access to the range of advice services that are available, including those on the resolution of planning issues that are often identified as being of critical importance in rural areas.

Marjorie Mowlam: Yes is the short answer. We are not just considering planning issues, but, when we consulted in rural areas, planning came top of the list for many people. We are considering how we can simplify the planning system and make it a quicker process so that it does not hold-up developments. However, as with any other policy, we have to make a judgment. We have to do what we can to speed up and simplify the system so that it is easier for people to use. However, at the same time, we must not affect the beauty of rural communities and we must do all that we can to protect the countryside. It is not a zero-sum game; we can have a win-win situation, as we have with rural housing policy where we are primarily considering brownfield sites for developments. Benefits can be obtained for all sides.
We are also considering one-stop advice. At the risk of raising a tendentious and difficult issue, I point out that we have already begun to help the rural post offices that are in difficulty. We have begun to provide money for information technology through the Horizon project and we already offer them 50 per cent. rate relief. In addition, I hope that one-stop shops, alongside existing provision, will provide a better service to people in such communities.

Mr. Colin Breed: Now that the Food Standards Agency has been established, will the right hon. Lady tell the House whether any consideration has been given to moving countryside and rural issues to the Ministry of Agriculture, Fisheries and Food so as to create an enhanced ministry of rural affairs and agriculture?

Marjorie Mowlam: Such structural change would be carried out by my right hon. Friend the Prime Minister. With the Food Standards Agency, we have set up an independent body that is not a part of the Ministry of


Agriculture, Fisheries and Food. The people to whom I have spoken want an independent body that is made up of experts from across the board. There is no scientific agreement on many issues, genetic modification being a prime example. The agency contains representatives from the community and from different scientific perspectives. It will provide advice and information and will produce reports. I am not sure that making it a part of MAFF would help the community response to the issues that affect rural areas.

Quangos

Mrs. Louise Ellman: What plans she has to make quangos accountable to elected regional and local bodies.[116385]

The Parliamentary Secretary, Cabinet Office (Mr. Graham Stringer): The Government have already transferred 220 public bodies to the devolved Assemblies in Edinburgh and Cardiff. It is the Government's intention in due course to transfer a number of public bodies to the Greater London Assembly.

Mrs. Ellman: Does my hon. Friend agree that it is entirely unacceptable for the Government to announce plans to make quangos accountable to devolved government in Scotland and in Wales, and to the proposed devolved government in Greater London, when he has no answers on what is to happen to unaccountable quangos in the English regions?

Mr. Stringer: The Government intend to bring forward legislation that will enable the electorate within the regions to determine whether they want an elected assembly. If they do, that will completely change the terms of the debate on the relationship of that elected assembly to any quangos.

Mr. David Winnick: Does my hon. Friend agree that quangos would be far more accountable, as outlined in the question, if no one is appointed to them who is not fully domiciled in the United Kingdom and who is not acting as an ambassador from a foreign country to the United Nations? In other words, we do not want on quangos any more Michael Ashcrofts.

Mr. Stringer: It has been the Government's policy to follow the Nolan procedures for appointments to quangos and to ensure, following the paper on the opening of quangos' doors, both that people presented to quangos have been "Nolaned" and that the quangos themselves operate in an open and accountable way. I am not aware that the gentleman to whom my hon. Friend refers has been appointed to any quangos in this country.

Government Services (Electronic Delivery)

Mr. Oliver Letwin: What recent representations she has received on the effectiveness of the Government's targets for the electronic delivery of Government services. [116386]

The Parliamentary Secretary, Cabinet Office (Mr. Graham Stringer): There have been two reports on the monitoring of the targets, which have been openly

debated. In the light of the two reports, my right hon. Friend the Prime Minister has determined to bring forward the date to 2005, when 100 per cent. of those services that are appropriate to electronic communications will be brought online.

Mr. Letwin: May I be permitted to congratulate the Minister and his colleagues on the huge enthusiasm—[Interruption.] Oh, yes, the huge enthusiasm that the Government display for matters electronic. Does he think that the Government's competence in delivering is evidenced by the fact that they appear to have chosen for themselves a web name that is already occupied by somebody else?

Mr. Stringer: No, I do not think that it affects the effectiveness of the Government that somebody has been trading under the internet provider named previously. I thank the hon. Gentleman for his kind comments, but the important point is that the Government are taking e-government and e-commerce seriously. We are speeding up the process to ensure that Government services are online so that we do not get behind in the international race.

Mr. Andrew Reed: While it is important that e-government becomes a way for the future, what steps is my hon. Friend taking to ensure that Members play their role in delivering e-government to their constituents?

Mr. Stringer: In many ways, the most important help that can be given to Members in using e-government is the greater availability of information that the Government are making available on their websites at all possible opportunities.

Mr. Andrew Lansley: If the Government's intentions on electronic government were serious, two things would have been done in the document published on Monday: first, managed call centres would have been taken out of the definition of electronic service delivery; and secondly, the target date for the proportion of services delivered genuinely electronically would have been 2002, not 2005. Why did the Minister do neither of those things?

Mr. Stringer: On the first point, the hon. Gentleman misunderstands the definition of communication with Government: it includes someone who calls a centre and speaks to a person who has access to all the available information, as opposed to just chatting about the information. If the information is available to the person contacted—for example, as it is in NHS Online—it counts towards the Government's targets; if not, it does not. I hope that the hon. Gentleman finds that definition helpful.

Mr. Lansley: I am grateful to the Minister, but I am afraid that he is the one who has got it wrong, speaking about NHS Online when he means NHS Direct. To the public, managed call centres are not a form of electronic service delivery, however desirable and accessible they may be. I have two specific questions: first, what proportion of Government services will be able to be delivered electronically—that is, by internet, digital


television and electronic data exchange—by 2002; and secondly, what proportion of services will be able to be delivered by digital television by 2002?

Mr. Stringer: The hon. Gentleman asks questions—[HON. MEMBERS: "No!"] Changing the target date from 2005 to 2002 for 100 per cent. electronic service delivery would obviously change the objectives and definitions for 2002. Precisely because of the nature of those questions, the Government are reviewing the current definitions of electronic communication.

Dr. George Turner: What role does my hon. Friend envisage for rural post offices in the delivery of Government services in the countryside? Is provision being made now to ensure that, if people increasingly want to use post offices to access Government services electronically, post offices will be able to offer such facilities? Are we putting the right technology into post offices now?

Mr. Stringer: Via the Horizon project, £500 million is going into post offices. The performance and innovation unit is considering the criteria for post office access and it is the Government's policy to maintain a national network of post offices.

Drug Abuse

Mrs. Ann Winterton: If she will make a statement on the Government's strategy for combating drug abuse among young people and teenagers. [116387]

The Minister for the Cabinet Office (Marjorie Mowlam): Young people are the main focus of the Government's anti-drugs strategy. One of our four key objectives is to reduce by 50 per cent. the incidence of drug misuse among the under-25s by 2008. We are working with all relevant Departments to ensure that young people receive the help and advice that they need to resist drug misuse.

Mrs. Winterton: Bearing in mind that 78 per cent. of teenagers in a school's education unit survey thought that Ecstasy was always unsafe, what impact will the proposal to downgrade Ecstasy, as recommended in the recent Police Foundation report, have on drugs prevention programmes in schools? Does the right hon. Lady agree that Leah Betts' death alerted young people to the fact that Ecstasy can kill? Does she also agree that research shows clearly that the use of Ecstasy can have a degenerative effect on the brain?

Marjorie Mowlam: The Government have made clear their position on the recommendations of the Police Foundation report: we do not support the recommendations in respect of cannabis and Ecstasy. I have met Leah Betts' parents; I recognise the pain and suffering that they have experienced and acknowledge their work to stop other young people from suffering their daughter's fate. I hope that that work, together with other preventive educational programmes that we are implementing, will make a difference to young people and ensure that no other family goes through the pain suffered by the Betts family.
On the recommendations from the Police Foundation, our position on the two that the hon. Lady mentioned is clear. We welcome the report, and in discussions between Departments my right hon. Friend the Home Secretary and I are considering the other recommendations. I hope that we can make substantial progress on those.

Mr. Brian White: Does my right hon. Friend share my frustration at the fact that debate on the issue is generally about whether one is hard or soft on drugs, instead of examining the complex issues involved and concentrating on practical measures that would help to get all people off drugs and ensure that teenagers and young people do not go on to drugs?

Marjorie Mowlam: That is a helpful contribution. It is important for people to understand that drug abuse cannot be broken overnight. It takes years to break the cycle. We are working hard with those in education to make sure that preventive measures are put in place to stop young people getting addicted in the first place. We are also working on treatment and on trying to stop the drugs coming in. Last Monday, we launched "Positive Futures" with people from Sport England, including Trevor Brooking and Kevin Keegan, and the youth offending teams, to try to get 10 and 11-year-olds to look more positively at the future—a future that can be sports-related, and not drugs-related.

Mr. Nigel Evans: I am concerned about what seem to be conflicting reports in the newspapers about Ministers' views on so-called soft drugs. Will the Minister tell the House clearly the Government's view on cannabis? Will she also comment on a poll published today, which found that one in five 15-year-olds has been offered heroin? Roger Howard, the chief executive of DrugScope, said that young people felt that they did not know enough about the dangers of heroin. Will the Minister talk to the Secretary of State for Education and Employment to ensure that young people are given sufficient warning about the dangers of heroin?

Marjorie Mowlam: The hon. Gentleman asks two questions. The Government have made clear their position on the recommendations in the Police Foundation's report on cannabis and Ecstasy: we do not agree with the recommendations. There are, however, many recommendations in the report which we welcome. Like my right hon. Friend the Home Secretary, I look forward to an open and frank debate.
On working in schools, I assure the hon. Gentleman that no one is trying harder than the Department for Education and Employment, the schools, the parents, the teachers and the governors to make sure that children are aware. We are issuing guidelines to schools so that they use the most effective educational measures. We have put extra money in, to make sure that teachers can find the time and the staff to do it. On prevention, we are working in communities with voluntary groups. People from the sports world and the media world, older people, former drug takers and people such as Leah Betts' parents go to talk to young people. All that helps.
We have put in an extra £7 million to help on the educational front. I can assure the hon. Gentleman that we have now reached more than 60 per cent. of primary schools and more than 80 per cent. of secondary schools. We are working hard to get that closer to 100 per cent.

Social Exclusion

Mr. Andrew Dismore: What discussions she has had with ministerial colleagues in her role as chair of the ministerial network on social exclusion.[116388]

The Minister for the Cabinet Office (Marjorie Mowlam): Since I was appointed chair of the ministerial network in December 1999, I have held one meeting, in January, at which I agreed with ministerial colleagues a future work programme to chase progress on the implementation of previous social exclusion reports. I plan to hold three further meetings in May and June to follow up implementation on school exclusions, truancy, rough sleeping and teenage pregnancy.

Mr. Dismore: In welcoming my right hon. Friend's role in ensuring that Government policy on social exclusion is implemented on the ground, I remind her that in London teenage pregnancy is an especially serious problem. Will she congratulate organisations such as Homestart, a voluntary group in my constituency? It supports the valuable work of Barnet health authority and Barnet council in advising young teenagers who are at particular risk of becoming pregnant, and works with them to ensure that they get the best help to improve their parenting skills if they become young mothers.

Marjorie Mowlam: I join my hon. Friend in acknowledging the contribution of organisations such as Homestart, which work in partnership with the Government and use some of the £60 million that we have put in to try to meet our target of ensuring that the number of teenage pregnancies is halved in 10 years. We have one of the highest rates of teenage pregnancies in Europe. We hope that, by working with local groups and using the extra money, and through better education and support, the numbers will be reduced drastically.

Mr. John Bercow: Given that the social exclusion unit undertook, as long ago as June 1998, to devise approaches to tackling some of the problems on our worst housing estates, will the Minister tell the House what discussions she has held this week with the Deputy Prime Minister about the Audit Commission's report? It stated that the five local authorities that perform worst on empty properties, and thus deny people the opportunity of having a home, were all run at the relevant time by the Labour party.

Marjorie Mowlam: The hon. Gentleman should consider the seriousness of the matter. He tries to score political points by counting councils; Conservative Members have few to count. We do our best to work with all councils—Labour, Liberal or Conservative—on housing. As my right hon. Friend the Deputy Prime Minister made clear in the housing package that he announced yesterday, money will be available for all communities to get more housing at lower cost and fairer rents.
If the hon. Gentleman has visited estates that suffer serious social exclusion problems, he will know that they are not caused only by housing. If problems such as boarded-up houses and rubbish in gardens are tackled on their own, the problem returns. We must ensure that housing, poor health, poor education, unemployment, bad environment and so on are tackled, and that that is done through co-operation. That is the way in which to regenerate a neighbourhood, and the social exclusion unit is working on that.
The social exclusion unit is also considering issues such as teenage pregnancy and rough sleeping, which can fall between Departments, to try to ensure that they are tackled, too.

Mr. Phil Hope: My right hon. Friend knows that last week the social exclusion unit published a report on young people. It suggested that a ministerial group at the highest level, with representatives from each Department, should consider young people's interests and how each Department affects their lives. We can thus join up the thinking across Government to ensure that young people get a decent service. That national structure should be reflected locally through local youth forums in which young people would have a voice. It is essential to implement that new strategy for young people as soon as possible.

Marjorie Mowlam: I thank my hon. Friend for his contribution. I agree that a strategy for Departments to join up to consider young people's interests is a positive step, which will make a difference to many young people. Again, the suggestion of doing the same locally has a lot to offer. However, I add a footnote and a warning. We must ensure that we do not tell people in our communities how best to implement a policy. There must be flexibility so that local communities can make decisions, which depend on factors such as size and urban-rural mix, for themselves.

Better Government for Older People

Mr. Paul Burstow: If he will make a statement on the better government for older people programme. [116389]

The Parliamentary Secretary, Cabinet Office (Mr. Graham Stringer): The 28 pilot projects are formally at an end as pilot projects, but some are continuing because they have been successful. The Government will evaluate them over the coming months and it is our intention to report by June.

Mr. Burstow: I am grateful to the Minister for that answer, but given that all the news releases issued about the programme boast of a series of "listening to older people" events across the country involving Ministers, can he tell us how seriously people can take those meetings when the Government have shown only this week how deaf they are to the voices of pensioners by failing to give them a decent increase in the basic state pension—just 75p? Are not the Government listening to but not understanding pensioners?

Mr. Stringer: What was in the hon. Gentleman's party's previous manifesto? Absolutely nothing on that


issue. It is clear that, over their period in office, the Government will have put £6.4 billion into pensioners' pockets. After 20 years of Conservative rule, the disparity between pensioners on the lowest incomes and those on the highest incomes was higher than it had ever been. By providing the minimum income guarantee to pensioners and free eye tests, the Government have done more for pensioners than his party or the Conservative party would do.

Oral Answers to Questions — PRIME MINISTER

The Prime Minister was asked—

Engagements

Mr. Peter Luff: If he will list his official engagements for Wednesday 5 April.

The Prime Minister (Mr. Tony Blair): This morning I had meetings with ministerial colleagues and others. In addition to my duties in the House, I shall have further such meetings later today.

Mr. Luff: In a recent letter to me, Philip and Ruth Bull of Evesham wrote:
We qualify for our state pension within the next few weeks but will not benefit from the same tax allowance as other 65 year old pensioners who were born a few days earlier.
How much more tax will pensioners such as the Bulls and all married couples below pension age have to pay from tomorrow as a result of the abolition of the married couples allowance and what my constituents describe as "This ludicrously discriminatory ruling"?

The Prime Minister: First, I hope that the hon. Gentleman pointed out to his constituents that the Conservative party reduced the married couples allowance from 40 per cent. to 15 per cent. Secondly, they are getting the basic rate cut in income tax. Thirdly, they will be entitled to the £150 winter fuel allowance. Those two things would be taken off them by a Conservative Government. In addition, we are putting in a lot more support for younger families with children through the extra child benefit, which would also be taken off the hon. Gentleman's constituents' grandchildren by a Conservative Government.

Mr. Bob Blizzard: Is it not the case that the Government's plans to modernise the national health service will meet their objectives only with a substantial increase in the number of nurses and with an expansion of nurses' role that recognises their talent and expertise? Does my right hon. Friend therefore welcome today's news that 5,500 more nurses are working in the health service and the announcement that those nurses will have more power? Is it not a mark of nurses' good judgment that at yesterday's Royal College of Nursing conference, 81 per cent. were not reassured by the words of the leader of the Conservative party because they know that he would privatise the NHS?

The Prime Minister: It is the case that the number of nurses has increased by 5,500. When we came to office,

the number of nurses in training had been cut. Now we are seeing an increase in the number of nurses. Also, the £5,000 for each ward—the capital help that nurses will get—will give them more power, and will also allow us to improve some 10,000 wards. We already know that the Conservative party's promises on health spending are hollow because it is committed to two things: first, private medical insurance tax relief—£1 billion out of the health service budget, half of which is a deadweight cost going to those who already have private medical insurance—and, secondly, refusing to support the increase in tobacco duty, which is £400 million. There is a £1.5 billion hole in its health spending plans already.

Mr. William Hague: May I ask the Prime Minister about a matter that the Secretary of State for Trade and Industry dodged and evaded this morning?
Last week in Munich BMW issued an account of precisely what its chairman said to the Secretary of State in December. It states:
If the structural aid is not approved, the BMW Group has to reconsider its investment plans for Longbridge.
When the DTI issued the same statement in London on behalf of BMW, the words of the BMW chairman had been carefully changed to make the position appear less dramatic. The words "for the R30" had been inserted, to make it seem that the statement could not have applied to the investment in Rover as a whole. This morning, the Secretary of State denied both accounts, including the account that he himself distributed to journalists in his office last week.
After that tale of doctoring and denial, would we not be right to conclude that nothing the Secretary of State says can any longer be believed?

The Prime Minister: No. The Secretary of State has given the fullest possible account. I think that what the right hon. Gentleman is saying is absolute nonsense. Of course the grant aid was very important, which is precisely why they had the conversation. As I explained to him last week, we were trying to make sure that the process was hastened. However, it had nothing to do with the ultimate decision.
What I find absolutely ridiculous is the right hon. Gentleman's focusing on who knew what when. Surely the real issue is what we do about the thousands of people who face losing their jobs. Instead of the right hon. Gentleman backing BMW's account of conversations with the Secretary of State, it would help if we had some co-operation from him in the making good of jobs of people at Longbridge.

Mr. Hague: The Prime Minister seems to be extraordinarily sensitive about who knew what when. Of course this is about things other than the grant aid. Do not this morning's documents show that BMW says the decision was also due to
uncertainty in the UK car market..?
The Secretary of State is even now sitting on the Competition Commission report that makes that point. The decision was also due to the
charges made for workplace parking.
It was this Government who introduced the power for that.
Does not this whole sequence lend credence to what BMW also said at the weekend—[Interruption.]

Madam Speaker: Order. The House will come to order.

Mr. Hague: We know that Labour Members do not want to hear it, Madam Speaker, but they had better hear.
BMW said:
The Government should have known, how could they not have known, the true situation of Rover Cars. We had given them the regular figures that left them in no doubt we were in a critical situation.
BMW reported a conversation that its chairman had with The Prime Minister:
Blair's attitudes and opinions seemed to be many and varied. I have heard him say different things.
That sounds like a pretty honest account to me.
Is it not clear from this that the DTI could and should have taken earlier action to avert or alleviate the situation?

The Prime Minister: The series of meetings with BMW took place because everyone knew there was a critical situation. [HON. MEMBERS: "Ah."] Of course they did. That was the very reason for the meeting that took place on 10 March.
The plain fact of the matter is that the company was losing £2 million a day. What we must do now is make sure that we can save whatever jobs we can—the Secretary of State, quite rightly, is working on that—and establish a taskforce with the money that is necessary to help people who do lose their jobs to find new jobs.
What I find both pathetic and ridiculous is the right hon. Gentleman's concentration on trying to back BMW's claims against the Secretary of State, rather than trying to make sure that those who do face the loss of their jobs actually get new jobs—which is what I intend to concentrate on.

Mr. Hague: If the Secretary of State is concentrating on the future, why is he spending his time doctoring BMW's statements—[Interruption.]—which he had agreed with BMW, and then denying that he made the statement in the first place?
Of course a huge amount of work must now be done. The DTI has major responsibilities in supporting the taskforce, making competition decisions, providing regional assistance and keeping in touch with all the businesses involved. is the Prime Minister going to express the confidence in his Secretary of State that he failed to express last week, or is he going to take the right course and have a new Secretary of State who focuses on the future rather than covering up his recent failures?

The Prime Minister: First, of course I do. This exchange only shows the right hon. Gentleman's lack of judgment. Rover employees—who, understandably, are really anxious about the future—will know that the people who sold the plant to BMW are the people sitting on the Opposition Benches.
Secondly, what we have to do now is to save as many of the jobs as we can, which we are doing—urgent discussions are going on. We are leaving no stone unturned to do that. We also have to ensure that we put

the money and the work in place to help not only the Longbridge workers, but those who are in the supply chain. That is precisely what we are doing. I am only sorry that, because the right hon. Gentleman has nothing serious to say about the issue, he has to carry on in this way.

Mr. Piara S. Khabra: Will my right hon. Friend join me in condemning the brutal murder by terrorists of 35 Sikhs in a small town in Kashmir? Will he also confirm the Government's commitment to fight against international terrorism—which is engaged in killing innocent civilians to destabilise communities, and is promoted and supported by countries that are well known to the international community?

The Prime Minister: We condemn all acts of violence that bring suffering to the people of Kashmir. We are of course appalled by the murders on 20 March, and my right hon. Friend the Foreign Secretary immediately made a statement condemning the massacre.
We are similarly appalled by the loss of life during a protest in Kashmir on 3 April, and we welcome the Indian decision to hold a judicial inquiry. We condemn terrorism in all its forms, wherever it occurs and whatever its motivation.
The United Kingdom is of course deeply troubled by continued violence in Kashmir. Our role in the matter, however, must be to encourage both India and Pakistan to find a just and lasting solution that is acceptable to the people of Kashmir. I think that that is the most sensible and responsible position for us to adopt.

Mr. Charles Kennedy: Why is the Prime Minister spending a smaller share of our national wealth on pensioners than the Tories did?

The Prime Minister: We have not merely increased the amount of money that we are spending on pensioners, we have increased the amount of money far beyond anything that the Liberal Democrats have ever promised pensioners. Over the whole of this Parliament, we are increasing the amount by £6.5 billion. So that the electors know it: that is £6.5 billion that the Liberal Democrats never promised they would spend.

Mr. Kennedy: In a written answer to my hon. Friend the Member for Northavon (Mr. Webb), the Government have confirmed that the share of national wealth—which is increasing—going to pensioners will decrease steadily over the course of this Parliament. In its manifesto at the previous general election, the Labour party said—[Interruption.]

Madam Speaker: Order.

Mr. Kennedy: Labour Members do not like to have their own words quoted back to them, Madam Speaker, but they are going to have them quoted back. At the last general election, Labour said:
pensioners should share fairly in the increasing prosperity of the nation.


The prosperity of the nation is going up, but the share going to pensioners is going down. If the Prime Minister wants to take the credit for the increasing prosperity, he should have the guts to take the blame for having sold pensioners down the river.

The Prime Minister: First, I think that people should understand that the Liberal Democrats never promised that they would re-link the state pension to earnings. Furthermore, every time they say to people that that is what they would do, they have not the faintest idea how they would pay for it.
Secondly, 1.5 million pensioners will benefit from the 10p rate on savings income by up to £150; 200,000 pensioners have been lifted out of tax entirely; 3 million pensioners over 75 will receive free television licences; the minimum income guarantee will increase the income of 1 million poorer pensioners; and the winter fuel allowance will go to 8.5 million households. Now, would we like to do more? Yes, of course we would like to do more, but we have done an immense amount for pensioners, particularly the poorest pensioners. What is not an honest policy for any party is to say that they would do more and more and spend more money and never say where the money would come from. That is not a serious policy or an honest policy, but it is the policy of the Liberal Democrats.

Mr. Gareth R. Thomas: Will my right hon. Friend acknowledge the genuine concerns about the possibility of a significant increase in air traffic, notably from London airports? In particular, will he note the on-going fears of many of my constituents and those in surrounding areas about the idea that RAF Northolt in west London could be expanded to become a feeder airport for Heathrow, with all the resulting pollution, noise and environmental damage for those under the flight path?

The Prime Minister: I can indeed give my hon. Friend the assurance that he seeks. I know that he has been campaigning on the issue for some time. He will be aware that the Government do not believe that the circumstances have changed to warrant reopening the issue of RAF Northolt and we do not intend to consider any proposals to develop it as a major civil airport, because it is clear that the environmental consequences would be unacceptable.

Mrs. Caroline Spelman: According to the Child Support Agency, only one third of absent parents pay maintenance in full for their children. Will not the Treasury be the only beneficiary of the removal of tax relief on maintenance?

The Prime Minister: No, I think that everyone will benefit, in particular from the new system that we are introducing for the Child Support Agency. It will be a far simpler and far fairer system. As the hon. Lady knows, the great problem with the Child Support Agency is that many of the costs are eaten up by bureaucracy. As a result of the simpler system, that will not be the case. We will

get the money in more fairly and there will be a benefit not to the Treasury, but to those who have to pay maintenance.

Mr. Gwyn Prosser: Is my right hon. Friend aware that the new Immigration and Asylum Act 1999, which came into force this week, is welcomed by my constituents and is already having an effect in Dover? Will he ensure that the provision for asylum will continue and that we will not be diverted or deflected by the disgraceful and shameful behaviour of the tabloids and the Tories, who seek to link increases in local council tax with asylum support?

The Prime Minister: Despite what the Conservatives say, my hon. Friend is right that we are establishing a national asylum support system to replace the shambles that we inherited from the previous Government. The Conservatives have proposed an extra £500 million of spending a year, because they want to revert to the cash benefit system in place of the system that we are introducing. They also oppose our action on road hauliers who bring in illegal immigrants. That is an extraordinary position, but it means that never again should my hon. Friend or any other Labour Member take lessons about asylum from the Conservatives.

Mr. William Hague: This week, the UK managing director of Cisco, one of the world's largest companies, said:
The UK is a great place for us. But, if tax remains the same we will have to look seriously at where we develop our products and where we have our European support operations.
Does the Prime Minister understand why one of the world's largest companies is saying that and will he explain the reasons to the House?

The Prime Minister: It is precisely because of the concerns that have been raised that we have a consultation paper with three options. We shall discuss the issue with those concerned. If firms such as Cisco have legitimate concerns, of course we have to deal with them, but we also have to deal with tax avoidance. If the right hon. Gentleman is saying that we should not attempt to deal with that, perhaps he will get up and say so.

Mr. Hague: Of course we should deal with tax avoidance. [Interruption.]

Madam Speaker: Order.

Mr. Hague: We should deal with tax avoidance, but that is not what one of the world's largest companies is talking about. It is talking about the extension of national insurance contributions—another stealth tax introduced by the Chancellor—on which there has been no consultation paper. The Prime Minister poses for pictures with computers but, when one of the world's largest computer companies threatens to pull the plug on UK investment, he does not know what it is talking about. That is not a good sign.
According to a report published yesterday, 50,000 IT consultants are either emigrating or thinking of emigrating, or they are not returning to the UK from overseas assignments—if only we could be so lucky with


the Deputy Prime Minister. Does the Prime Minister understand why thousands of IT companies are taking their business abroad? Will he explain that to the House?

The Prime Minister: The right hon. Gentleman is talking absolute nonsense. Of course there is a paper about the share options, as it is important that we ensure that there is no tax avoidance. We will listen to legitimate concerns and act on them, but it would be wholly wrong to allow tax avoidance to take place on the back of any of those practices.
As for British business, the economy has never been stronger. We have 800,000 new jobs, growth is up, and for the first time in 30 years we have come through a slowdown without a recession. Inflation is down, and for the first time in decades we have got rid of Tory boom and bust.

Mr. Hague: So either the Prime Minister is unaware of what is happening in the high-technology sector, or he does not care about it. The British Chambers of Commerce said yesterday that
the Government seems to be unaware that its actions are working against creating a better climate for business.
Those words are borne out by the Prime Minister's remarks in the past few minutes. While the Secretary of State for Trade and Industry is waving goodbye to the old economy, is not the Chancellor—with stealth taxes and regulations—slamming the door on the new economy?

The Prime Minister: I was thinking that there is at least one economic migrant who has come back to this country instead of staying abroad. They are not all leaving—some are coming back.
What the Leader of the Opposition is saying really is nonsense. Of course it is important for us to ensure a good climate for business. That is why we have reformed capital gains tax and reduced corporation tax, but we must also ensure that tax avoidance does not take place. We have a balance to strike, and we are trying to strike it in the right way.
As for business, I draw the right hon. Gentleman's attention to the latest survey of business confidence published by the London chamber of commerce and industry today. It reports that 62 per cent. of businesses expect turnover to increase, and that only 6 per cent. expect it to decline. It adds that 45 per cent. of firms expect to take on staff, and that only 7 per cent. foresee a fall in staff numbers. It reports that only 34 per cent. of firms say that they may have to raise prices, and that profit expectations are the highest for three years. That is the reality.

Hon. Members: More, more!

Madam Speaker: No. No more. I call Mrs. Gilroy.

Mrs. Linda Gilroy: Does my right hon. Friend agree that a most welcome aspect of this year's Budget is what it does for older

people with modest savings? Will the Government build on that by recognising thrifty pensioners in future Budgets?

The Prime Minister: My hon. Friend is right to draw attention to this matter. The Government are consulting on the idea of a pensioner credit that will help pensioners who are above benefit levels but who are not well off. For example, we have rejected Liberal Democrat calls to put everything on the basic state pension because pensioner income levels vary in this country.
Some pensioners are very poor, some are relatively well off, and there is quite a large band in the middle. Therefore, trying to solve all such problems by putting everything on the basic state pension will mean that some of the money will go to people who do not need it, and that some of the poorest pensioners will not be helped.
To make sure that we help the poorest pensioners we want to introduce the minimum income guarantee, while the 10p tax on savings and higher capital limits will help the better-off pensioners. To help precisely those pensioners to whom my hon. Friend has drawn attention we need to consult now on the pensioner credit.
Again, this is an argument in which sensible people know that the system has to change in time and I am pleased to say that we are leading its reform.

Mr. John Randall: Why should the council tax payers of Uxbridge be penalised for the Government's policy failures on asylum seekers?

The Prime Minister: I am afraid to have to tell the hon. Gentleman that the fact of the matter—I hope that his constituents understand this—is that if we pursued the policies that he is advocating, we would restore cash benefits. That is one big way to reduce the number of asylum seekers! The Conservative party was in favour of restoring cash benefits—[Interruption.] Well, Conservative Members do not seem to think that it is their policy, but I am afraid that it is.
Secondly, there was an instance yesterday of the way in which we are tackling lorry drivers who bring in illegal entrants at the port of entry. I will give the hon. Gentleman the facts because they bear on what will happen to his constituents. About 2,000 illegal immigrants enter in that way each month. As a result of the measures that we introduced, we have the power to tackle that. The Conservative party also opposed those measures. Indeed, it put out a statement today saying that it would get rid of that fine for road hauliers. We all know that the problem of bogus asylum seekers is real. The difference is that we are tackling it and he is not.

Ann Clwyd: Millions of people are threatened with famine in Ethiopia. What are we doing to help?

The Prime Minister: From memory, I think that according to the latest figures from the Department for International Development we are providing about 10 million tonnes of food aid for people in Ethiopia. I think the total cost is more than £2.5 million, but we are also attempting to do other things. As my hon. Friend knows, the continuing conflict in Ethiopia and Eritrea is one of the main reasons why this is such a problem. We


are doing everything that we can to bring the sides together. We are providing immediate aid and we are trying to work on a long-term solution.

Mr. Graham Brady: Will the Prime Minister now condemn the absurd attack by the Secretary of State for Education and Employment last week on grammar and high schools in the borough of Trafford—the local education authority that achieves the best results in the north-west of England and which the right hon. Gentleman accused of standing in the way of the Government's objective of increasing standards?

The Prime Minister: I am pleased to say that we are increasing standards. The hon. Gentleman will know that in primary schools, for example, they have never been higher. If he wants to get into a debate about grammar schools—this will not appeal to everyone in the House—I remind him that the party that closed more grammar schools than any other was the Conservative party.

Mr. Russell Brown: Earlier today, during the Adjournment debate in the Scottish Grand Committee on alleviating pensioner poverty in Scotland, the Sutherland commission on the long-term care of the elderly was mentioned. Is the Prime Minister in a position to tell us when the Government will announce the response to the last of those recommendations?

The Prime Minister: Yes. The response will be announced as part of the comprehensive spending review. The royal commission recommendations, which have a number of spending implications, will be considered within the overall context of the Government's spending proposals. When that review is brought forward, we will state our views on the royal commission's report. In the meantime, we have allocated additional money over three years to help fund respite care and we are extending direct payments to people aged 65 and over. Again, that is a change from the spending plans of the previous Government.

Mr. Peter Atkinson: Parents of schoolchildren in Northumberland have written to the Prime Minister to protest that the county council has cut £1 million from school budgets and are asking how that squares with the right hon. Gentleman's much-publicised commitment to education. How will the Prime Minister reply to those letters?

The Prime Minister: I do not know the facts of the case that the hon. Gentleman mentioned, although I will

obviously look into them. One of the best ways in which we are dealing with the matter is through the Budget, which is putting money directly into schools to enable them to spend it on the things that they want. In addition, I am sure—although I do not know the specific examples—that schools in Northumberland will have benefited from new deal money, which is money that the Conservative party would take off because it opposes the new deal, and from the literacy and numeracy strategy which has raised standards in primary schools—a programme that the Conservatives opposed. We all remember that when we put education money into the education budget in the previous comprehensive spending review, those on the Opposition Front Bench called it "reckless and irresponsible". The one thing of which I can be sure is that more is happening—and better—in education in Northumberland than under the previous Government.

Mr. Bill Michie: Next week, the Secretary of State for International Development will be meeting with other people in the education forum. I know that she will do a good job because I have seen half the brief that she is preparing. Because of the fears of some organisations that some members of the forum are dragging their feet, will the Prime Minister lend his support to the aims, principles and objectives of universal primary education? The future of literally millions of children depends on it.

The Prime Minister: This is a very important initiative—indeed, we support it 100 per cent. I am delighted, again, that the Department for International Development has been at the forefront of the notion of bringing in universal worldwide primary education. It is immensely important for developing countries, and it goes alongside the work that has been pioneered both by my right hon. Friend the Secretary of State for International Development and by the Chancellor in debt relief.
One of the things that I am most proud of in this Government is that after years of ignoring the issues of debt, overseas aid and development—

Hon. Members: Oh!

Madam Speaker: Order. Prime Minister.

The Prime Minister: Yes—years of ignoring the pledge to raise overseas aid and development as a proportion of national income. One of the things I am most proud of is that, whereas it fell under the previous Government, under this Government it is now rising. That is yet another difference between them and us.

Point of Order

Mr. Peter Ainsworth: On a point of order, Madam Speaker. You may be aware that today the Government published a sports strategy, an event to which they appear to attach some importance. There has been some difficulty in supplying copies of the strategy to hon. Members who were seeking them this morning, having heard all about the strategy from the Minister for Sport who was talking on the radio this morning and also writing in the national press. Would it not have been more appropriate, not to say more courteous, if the strategy had been announced here first?

Madam Speaker: I, too, heard the Minister early this morning on the radio. I am grateful to the hon. Gentleman for giving me notice of his point of order. I have investigated the circumstances behind his complaint. I understand that Ministers launched the sports strategy to the press at 9.45 this morning. There was no parallel announcement in Parliament, and the document concerned was not generally available in the Vote Office until much later this morning. This is a clear breach of the conventions that apply to announcements of this sort, and it is totally unacceptable to me and to the House.
It seems to me that there is a situation developing in some Departments in which the interest of Parliament is regarded as secondary to media presentation, or is overlooked altogether. I hope that Ministers will set in hand a review of procedures right across Whitehall to ensure that the events that took place this morning are never allowed to occur again.

The Minister for Sport (Kate Hoey): Further to that point of order, Madam Speaker. I thank the hon. Member for East Surrey (Mr. Ainsworth) for raising this point of order. On behalf of the Department for Culture, Media and Sport, I apologise for the administrative error that took place in not ensuring that the document was here this morning for hon. Members. I appreciate that this was not done correctly. However, I hope that what I said on the radio this morning did not go into the detail of the paper in any way.
I accept what you have said, Madam Speaker. I believe that the House has been treated discourteously. That point will be made to my Department, and I apologise unreservedly on its behalf.

Weights and Measures (Amendment)

Mr. David Lidington: I beg to move,
That leave be given to bring in a Bill to make the use of imperial weights and measures no longer subject to proceedings for a criminal offence.
From 1 January this year, it became a criminal offence—unbelievable though it seems to many millions of our fellow citizens—for a British shopkeeper or market trader to weigh out a pound of apples or meat and to sell that produce to his customers. Any trader who continues to use traditional British units of measurement faces a fine of up to £2,000, the possibility of a term of imprisonment and the prospect, if convicted, of a criminal record, with all that that entails for the person's public reputation. My Bill is intended to put right that absurd and unwanted piece of over-regulation.
UK customers do not want the current law. When I do my weekend shopping in Princes Risborough high street, I am met by local traders and shoppers in my constituency who tell me that they have been made to feel like foreigners in their own country. They do not understand the need for the new law.
To make matters more absurd, that law is not even being enforced by the trading standards officers whose duty it is to do so. The fact that no prosecutions seem to have been made since 1 January shows that trading standards officers—for good reason—are fighting shy of bringing proceedings, even though they know well that many traders continue to defy the law because that is what their customers want them to do. I agree with those trading standards officers who have chosen to turn a blind eye; it would be an utterly disgraceful waste of scarce public money were taxpayers' resources to be squandered on such prosecutions.
Nevertheless, the threat of criminal penalties remains on our statute book. The law has a surreal quality. I can order a pound of mince from the butcher, but the butcher is not allowed to sell me a pound—he has to measure out the metric equivalent.
The absurdity goes further than that. Goods can be described using traditional measures, but may not be priced or advertised thereby. One can ask to buy so many metres of 54 in curtaining. That is complete nonsense.
If people want to use metric measurements, they should be entitled to do so. That should be a matter for individual traders and their customers to decide. Indeed, examination of the statute book reveals that as long ago as the 1860s the Metric Weights and Measures Act 1864 allowed the use of metric units for contracts. In 1897, the use of metric units for trade was made lawful. My Bill will do nothing to prevent consenting adults from continuing to use metric measurements if they choose. I am against a law that compels people to use metric units when they would prefer to use traditional British units.
The case is usually made that the new law flows from a European directive. I looked up the key measure—European directive No. 80/181 EEC of 20 December 1979. Like all European Community directives, it has a preamble listing the various reasons why the Community considers that item of legislation to be necessary. The hon. Member for Crewe and Nantwich (Mrs. Dunwoody)


always referred to such provisions as the "whereas" clauses. The key clause states:
Whereas the laws which regulate the use of units of measurement in the Member States differ from one Member State to another and as a result hinder trade…it is necessary to harmonise laws, regulations and administrative provisions in order to overcome such obstacles.
I draw the House's attention to the key elements: the purpose of the legislation was to prevent the hindrance of trade, and the harmonisation envisaged was in order to overcome obstacles to trade between different member states. I do not see how a criminal penalty on a British greengrocer or butcher who sells loose goods to customers in the high street or town square market has any bearing on free trade within a single European market. The legislation on the statute book flouts the principle of subsidiarity that is enshrined in European treaties and is not proportionate to the problem that the directive purports to identify.
Nor is it true that criminal sanctions are demanded by the directive. The Government have produced no evidence so far that other member states have implemented such sanctions, let alone enforced them.
There was a 10-year derogation from the directive for the sale of loose goods and goods weighed at the point of sale. There is no reason why the Government should not have sought to renew it and extend it much further. Indeed, a derogation was agreed by the Community for packaged goods because that was essential for exports to the United States not only from Britain, but from every country in the European Union. The United States insists on dual marking—metric and imperial—for pre-packaged goods for sale in shops.
Ministers could have sought a similar derogation for loose goods for sale in Britain, but they chose not to do so. They have admitted that they did not even discuss the idea with the Commission, or with other member states.
The Government have offered some small comfort, saying that it is possible for traders to provide supplementary labels alongside metric measurements, but that would involve a lot of work and expense for traders. On pain of criminal sanction, they must show metric units and give those priority. My Bill would abolish criminal penalties for a trader who uses pounds, ounces, feet, inches and other traditional British units of measurement by biting on the Weights and Measures Act 1985, which lays down penalties for use by traders of units of measurement other than those prescribed by law.
If traders and customers want to use metric measurements, they should be free to do so, but the same freedom should apply to people who prefer to buy and sell goods in the traditional British way. The law is an example of unnecessary and over-burdensome regulation. It needs to be changed.

Question put and agreed to.

Bill ordered to be brought in by Mr. David Lidington, Mr. David Amess, Mr. Nick Hawkins, Mr. Stephen Day, Mr. Nick St. Aubyn, Mr. John Hayes and Mr. Simon Burns.

WEIGHTS AND MEASURES (AMENDMENT)

Mr. David Lidington accordingly presented a Bill to make the use of imperial weights and measures no longer subject to proceedings for a criminal offence: And the same was read the First time; and ordered to be read a Second time on Friday 9 June, and to be printed [Bill 104].

Mr. Peter Lilley: On a point of order, Madam Speaker. Can you confirm that it is still the expectation of the House that if a Minister misleads the House, even if he be Prime Minister, he will set the record straight at the earliest possible opportunity? Can you tell us what the earliest possible opportunity would be for the Prime Minister to set the record straight and to correct his blatantly untrue statement that the previous Government had neglected international debt?
Every major initiative, including the Ottawa terms, the Trinidad terms and the sub-Saharan Africa initiative, was introduced by the previous Government, who set an example to the world by rescinding £1 billion of Government debt and converting it into loans—the biggest relief by any country in the world.

Madam Speaker: The second half of the right hon. Gentleman's so-called point of order is certainly not a matter for me; it is a matter for argument and he has put his case on the record. Any Minister, even the Prime Minister, is expected to make a correction at the earliest opportunity if he has inadvertently misled the House, and he could do so by means of a written question if necessary. The right hon. Gentleman has made his point and placed on record his own opinion of the exchange.

Mr. Nick Hawkins: On a point of order, Madam Speaker. I think that concerns about the quality of the recording equipment in the House are a matter for you, so I want to raise as a point of order what appears in column 340 of Hansard of 29 March. I am sure that you will recall that during Prime Minister's questions on that day there was an interruption during a question asked by the hon. Member for North Cornwall (Mr. Tyler) from the Liberal Democrat Front Bench. Hansard records that there was an interruption when Labour Members in fact called out, "Boring." I am sure that you will recall, Madam Speaker, that your reply was, "Boring or not, I want to hear the hon. Gentleman", but in Hansard, that simply appears as:
Order. This is a Parliament and hon. Members must be heard.—[Official Report, 29 March 2000; Vol. 347, c. 340.]
Will you state whether the recording equipment should be checked?

Madam Speaker: I have always believed that whatever Members want to say in the House, providing that it is said in parliamentary terms, should be heard by the House. There is a difference between listening and hearing. Hon. Members do not have to listen, but Members who are speaking have to be heard, and I am sure that the House appreciates that distinction.

Mr. John Bercow: On a point of order, Madam Speaker.

Madam Speaker: My day would not be complete without one from the hon. Gentleman.

Mr. Bercow: I am grateful to you, Madam Speaker, and I shall take that as a back-handed compliment. You said that an inadvertent error could be corrected by means of a written answer, and that was extremely helpful to the

House. Will you clarify beyond doubt that in the event of such an inadvertent error by a Minister, including the Prime Minister, it is that Minister's responsibility to ensure that a written question is tabled allowing correction via an answer?

Madam Speaker: I refer the hon. Gentleman to the reply that I gave a moment ago.

Orders of the Day — Freedom of Information Bill

As amended in the Standing Committee, further considered.

Clause 13

DISCRETIONARY DISCLOSURES

Mr. Harry Cohen: I beg to move amendment No. 107, in page 7, line 28, leave out from "(e)" to end of line 31 and insert "section 38(1)".

Madam Speaker: With this it will be convenient to discuss the following amendments: No. 105, in clause 38, page 21, leave out lines 24 to 30 and insert—

'(a) that the disclosure of information to a member of the public would be likely to result in a public authority breaching its obligation to respect the private life of individuals as set out in Article 8 of Schedule I to the Human Rights Act 1998, and'.

No. 106, in page 21, line 35, at end insert—

(3A) When determining whether the obligation specified in subsection 3(a) is breached a public authority shall, in particular, have regard to—

(a) whether the disclosure of information by the authority is likely to cause unwarranted damage or unwarranted distress to the private life of any individual who is identified by the information,
(b) whether the disclosure of information by the authority is explicitly prohibited by any enactment other than a disclosure which may be required by this Act,
(c) whether the disclosure of information by the authority is prohibited by the common law,
(d) whether the substantial public interest would be served by the determination that the information should not be disclosed,
(e) whether the information relates to other information of a similar nature which is readily accessible to the public, and
(f) whether the disclosure of information by the authority would be likely to result in a public authority being in breach of an obligation under the Human Rights Act 1998, other than as specified in Article 8 of Schedule 1 to that Act.

(3B) For the purpose of this section, any processing which is necessary to facilitate a disclosure of information by a public authority pursuant to a request under this Act shall be considered not to breach any data protection principle of the Data Protection Act 1998, and, for the avoidance of doubt, the data protection principles shall apply to any subsequent processing by any person to whom that information has been disclosed.'.

No. 108, in clause 69, page 35, line 21, at end insert—

'(3) Subsection (1) shall not have effect in respect of any personal data obtained by a public authority after 23rd October 2007.'.

No. 109, in schedule 6, page 64, line 36, at end insert—
'. In section 55 of that Act—

(a) there is inserted after subsection (1)—

"(1A) A data controller must not knowingly or recklessly obtain or disclose personal data in any way which causes a serious breach of any data protection principle.";

(b) in subsection (2) the words "Subsection (1) does" are replaced by "Subsection (1) or (1A) do"; and

(c) in subsection (3) the words "or (1A)" are inserted after "subsection (1)".'.

Mr. Cohen: The amendments deal with personal data and the complex interface between the Data Protection Act 1998 and the Bill, which taxed the Standing Committee considerably. I share the views expressed in Committee that the interface is overtly complicated and might not work effectively, and my amendments aim to deal with that problem.
First, I shall explain my understanding of the interface, to set the scene. If a request for information under the Bill relates to personal data, the clause 38 provisions are triggered. If the requester is the data subject and is seeking access to information about himself or herself, the request is treated, under clause 38(1), as a subject access request under the Act. Unless there is an exemption under that Act, the data subject will obtain access to personal data about himself or herself. If an exemption in the Act applies, the personal data become exempt information under the Bill.
Attention then turns to the provisions in clause 13(1)(a)(i) and clause 13(2)(e), which together mean that the exempt information is not considered for a discretionary disclosure. In summary, if an exemption under the Data Protection Act applies to the access request, that is the end of the matter, barring intervention from the courts or the data protection tribunal, and no disclosure takes place.
A similar procedure applies if the requester is not the data subject but is, for example, a journalist seeking access to the background papers associated with the decision not to extradite General Pinochet to Spain. Under clause 38(2), the public authority would consider the first condition in clause 38(3)(a). If the request was deemed to lead to a contravention of any data protection principle, the personal data would become exempt information. The provisions in clause 13(1)(a)(i) and clause 13(2)(e) would also apply and the exempt information would not be considered for discretionary disclosure.
I shall not repeat the points that were made in Committee; suffice it to say that the data protection principles are complex and the conditions in schedules 2 and 3 to the Data Protection Act present the public authority with difficult interpretations which relate to any processing operation. However, schedules 2 and 3 deal with only half of the first principle. One must also consider the application of the remaining seven and a half data protection principles, in particular the fairness rules of the first principle, which may mean that data subjects must be informed about freedom of information access. That would no doubt trigger the application of the right contained in section 10 of the Data Protection Act to object to the processing—in this case the disclosure under freedom of information rules.
A more critical way of putting it is that the application of the data protection principles presents a public authority with many arguments not to satisfy a freedom of information request. The authority could argue that a principle would be breached if personal data were involved.
As I have already said, the question of discretionary disclosure does not arise. We should take note of the view of the then Data Protection Registrar as expressed to the Public Accounts Committee in its deliberations on the


draft Freedom of Information Bill. I have no doubt that my hon. Friend the Minister accepts that view as correct and it has not been denied. The then Data Protection Registrar said:
there is a danger that you, (the requester), will get a limited amount of third party information.
In Standing Committee, I noted that the Government refused amendments that sought to distinguish between an individual acting in a public capacity and an individual acting in a private capacity. Thus a request for access to personal data in relation to a public capacity is treated in exactly the same way as a request for access to personal data that is made in a private capacity. It follows that if the statement by the Data Protection Registrar is correct, there is considerable risk that a large volume of information could be exempt merely because it is personal data. If it is exempt information, access is likely to be withheld.
So what are personal data? Using the definitions in the Data Protection Act, personal data are any information which relates to a living individual—for example, decisions taken by officials and recorded as such. Other examples include minutes of meetings and papers discussed at those meetings, executive authority for action and attendees who discuss some public policy. As freedom of information requests for such documents will be from members of the public, it follows that the requests relate to personal data where the requester is not the data subject. It also follows that access to those personal data follows the clause 38 procedure, with the risks that I have already outlined, which could result in the information not being released.
It is my view that most freedom of information requests are requests for access to personal data: for example, someone might seek access to information on why my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs decided to allow jets to be sold to Indonesia. That might be deemed a request for access to personal data where my right hon. Friend is the data subject. That scenario is a simple example of why the current interface is fraught with difficulties in implementation. The loophole exists for information which should be in the public domain not to be released. That is against the spirit and the intention of freedom of information.
Let me provide a more likely example in which key papers relate to other living individuals. Let us suppose that there is a request for access to the minutes of a meeting between an IT supplier and a public authority to explore why a benefits computer system keeps failing. Such a request will involve access to personal data that relate to several people, including some who are public officials and others who are employees of the IT supplier. Clearly, word-processed documents that identify the authors of papers, the attenders at meetings or the opinions of identifiable contributors all constitute "personal data" as defined in section 1(1) of the Data Protection Act 1998.
I should like the Minister to clarify which condition in schedule 2 of the 1998 Act could legitimise the disclosure, in such a scenario, of all those personal data to a requester using the Freedom of Information Bill. I should also like to know what the fair processing implications are for private sector employees. If such details cannot be

explained, it is easy to see how a public authority can claim a likely breach of the data protection principles, and thereby have the means to deny a freedom of information request.

Mr. Tam Dalyell: While my hon. Friend is on this subject, may I add to his question? Could we have the reflections of the Home Office on the effect on people in the public sector and people operating in the public sector—in particular Members of Parliament—given the celebrated case of George Strauss v. London Electricity Board? There is a problem here, I think.

Mr. Cohen: My hon. Friend makes a good point, which is also worthy of the Minister's response.
Several options are available to resolve some of the problems. For instance, any public official mentioned in the data could consent to the release of his personal data; but if a freedom of information request is dependent on such consent, it cannot really be called freedom of information. Of course, names, initials or identifiers of individuals can be removed from documents so that they are no longer personal data, but that might push up the cost of access towards the statutory limit. In addition, a public authority could turn a blind eye to the fact that the information is personal data, but the exercise of that blind eye is at the discretion of the public authority.
I am arguing that there are too many unanswered questions and that there needs to be a clear and uncomplicated exposition of how the interface will work. So far, none has been provided.
I shall now explain the benefit of my approach. It avoids the need to consider officials acting in a public versus private capacity and a "serious harm" test, which for some reason seems to strike fear into the Government. Instead of a breach of any of the data protection principles, my amendment makes the test of whether personal information is exempt information dependent on article 8 of the European convention on human rights, enshrined in our law in the Human Rights Act 1998. That approach also requires changes to clause 13 of the Bill.
First, I shall raise a quick point. My amendment does not affect the situation where the requester is the data subject; it deals only with access by an individual who is not the data subject.
My starting point is that before personal data about one individual can be released to another, a public authority must weigh many factors that define whether personal data should be exempt information. Most of those relate to the private life of an individual. By focusing on private life—the person's home, his family, his correspondence—my amendment draws the attention of a public authority to the fact that those private elements have a differential and greater weighting importance than decisions that relate to public life. It gives a clear steer that the protection of private life is the important factor that requires safeguards.
Those factors which protect private life are self-explanatory. They are whether the disclosure of information by the authority is likely to cause unwarranted damage or unwarranted distress to the private life of any individual who is identified by the information;


whether the disclosure of information by the authority is explicitly prohibited by any other enactment; whether the disclosure—

Mr. John Bercow: I am following the logic of the hon. Gentleman's argument closely. Is he advocating that Members of Parliament should have access to the personal data held on them by the respective Whips Offices?

Mr. Cohen: I had better not be drawn down that route for several reasons, not least the Whips' information; but of course there is information on the number of times we have voted and the number of times that we have rebelled, and that goes to our constituency parties. That is a welcome bit of freedom of information to our constituency parties.
4 pm
I wish to make some other points about the protection of private life. My amendment recognises that, in a case of disclosure of personal data to a requester who is not the data subject, other factors might have to be considered. Even when the request relates to exempt information, the amendment would ensure that the disclosure was weighed in the context of the provisions in clause 13. That means that the impact of the Government amendment, which will make personal data exempt from any discretionary disclosure under the clause, has to be removed. My amendment would allow the private life circumstances outlined in it to be considered in combination with the emphasis in the clause in favour of disclosure while allowing for a decision not to disclose where the impact on private life was proven to be unwarranted. That is the correct balance.
My amendment would ensure that the data protection principles would still apply to the subsequent processing by a requester of personal data disclosed by a public authority. That processing would still be subject to the Data Protection Act. Unless there is a Data Protection Act exemption, the transparency rules may oblige the requester to contact the data subject to alert him to the processing. My amendment would help the Government to get off the hook whereby proper freedom of information disclosures of public information could be blocked because of the current loophole in the Bill on personal data.
I wish to speak briefly to two other amendments in the group. Amendment No. 108 would ensure that all personal data, other than those relating to staff, that are collected by a public authority would be eventually subject to all the data protection principles. In effect, that would be from 24 October 2007 in the third consecutive term of the Labour Government.
My amendment would mean that all personal data have the same status as accessible records which are the unstructured, manual, personal files that are held for the purposes of housing, health and social work. In addition, not only would public authorities have until 2007 to prepare for the change, but my amendment would apply only to data collected after 23 October 2007. The change is minimal but important. The amendment probes why the Government have stepped back from their undertaking to subject all personal files to a data protection regime.
It is relevant to compare clause 69 with equivalent provisions in the consultation document "Your Right to Know", Cm 3818. That document stated:
The Freedom of Information Act will be drafted so that it is compatible with the Data Protection principles.
It gave the impression that all non-automated personal information would eventually be subject to some or all of the data protection principles. It did not say that a freedom of information Bill would be drafted so that it would be exempt from those principles, but that seems to be the case with this Bill. Clause 69 is a long way from the compatibility promised in the consultation document.
The Data Protection Act 1998 recognises four types of information about individuals as being personal data. They are information processed by automated equipment; information recorded so that it should be processed by such equipment; information recorded to be part of a relevant filing system, most notably information recorded in a highly structured manual filing system; and information recorded as part of an accessible record, which is that information open to access by previous Bills inspired by freedom of information, such as the Access to Personal Files Act 1987 which covered health, social service, housing and education records. It is noteworthy that such accessible records will, by 24 October 2007, be afforded the full protection of the Data Protection Act.
It should also be noted that unstructured information includes a significant file of personal information that many normal people would call structured. That includes papers in date order that all relate to an individual and perhaps have his name on the cover. That is made clear in the explanatory notes that accompanied the Bill and what was then the Data Protection Bill, which provide an example of the new variant of data. The notes refer to
a case file about an individual which contains correspondence about a number of matters relating to that individual and is indexed by reference only to the dates of correspondence.
That is why I believe that all personal data, irrespective of structure, should eventually be subject to the Data Protection Act 1998. That Act accords a good deal of protection to the information via its eight data protection principles.

Mr. Nick Hawkins: I am following carefully what the hon. Gentleman has said. I shall, of course, have a chance to respond in detail. He has been talking about the contrast between the White Paper "Your Right to Know" and the Bill. Does he agree with what the Campaign for Freedom of Information has produced? It produced a sheet headed "Anger with the draft Bill as compared with praise for the White Paper?" Has the hon. Gentleman seen that, and does he agree with the campaign's analysis?

Mr. Cohen: That is a much broader issue that covers many aspects of the Bill. I would probably agree in some instances and not in others. However, as I have been drawn on a specific issue, I shall say that there is clearly a difference between the Bill and the consultation paper. I hope that my hon. Friend the Minister will take it up when he responds to the debate.
Simply put, the Government's approach has some undesirable consequences allowing for such unstructured personal data to be, for example, processed unfairly, to contain irrelevant and excessive personal data, to remain


inaccurate and out of date, to be retained for ever and to be processed insecurely and transferred to any country, perhaps one where a tyrant is in charge. The purpose of the amendment is to place all personal data on the same basis as accessible records. From 2007—when accessible records have to comply with the data protection principles—I want other unstructured personal data to do likewise.
The objective of amendment No.109 is to correct an imbalance in the Data Protection Act. At present, if a member of staff deliberately sets out to flout the law, a number of punishments are available. Section 55 of the Act relates to unauthorised obtaining and disclosing. Alternatively, the provisions of the Computer Misuse Act 1990 may apply. In addition, Government often criminalise unauthorised disclosures directly in official secrets legislation, finance law and social security Acts.
We all recognise that if staff breach the rules, there should be the prospect of criminal sanctions if the situation merits it. I find it surprising that there is no counterbalance if an organisation or a data controller sets out deliberately to flout the same privacy rules. Let us suppose that a data controller knows that there has been a position established by the courts or a data protection tribunal on the need to inform individuals of all processing purposes in advance of any processing. What happens if that controller sets out to keep such details secret? Under the Data Protection Act or any other legislation, there is no effective criminal sanction.
The Data Protection Registrar can huff and puff and stop the processing, but he or she cannot apply a direct criminal sanction. It is a mechanism that allows some controllers to say, "We can process without any regard to data protection laws until we get caught."
If it can be established that an organisation has systematically and deliberately set out to invade privacy, a criminal sanction should be available. I am rather surprised that it is not. If an individual member of staff systematically and deliberately set out to invade privacy, a criminal sanction would be available. If my amendment were accepted, it would be an offence for a data controller deliberately to set out to process personal data in a way likely to cause a serious breach of a data protection principle. I am not defining any deliberate breach of a principle as being an offence, although I was tempted to do so.
As I have said, the matter must be serious. I inserted the word "serious" in order to reassure data controllers that the offence is not to apply too widely to minor indiscretions, and that it would not be used in an officious manner. An employee commits an offence if he breaches the Data Protection Act, but there are no criminal penalties if an organisation sets out deliberately to flout its data protection duties. My amendment would redress the imbalance.
I am sorry that I have taken so much of the House's time, but these are complicated matters. I think that it is important to get them on the record and to get a response from my hon. Friend the Minister.

Mr. Hawkins: The hon. Member for Leyton and Wanstead (Mr. Cohen) need not apologise to the House for the way in which he has just moved his amendments.

I hope I do not embarrass him when I say that it is typical of the thoroughness with which he approaches all matters that he has gone through the amendments in detail and explained the seriousness of the issues involved. Not for the first time, I find myself agreeing with much of what he says. He has again provided a classic example of the reason why he is exceptionally popular among Members of Parliament on both sides of the House. He and I have, on occasion, disagreed about one issue—nuclear disarmament—but on almost all other issues, I find myself largely in agreement with him because I know the seriousness with which he approaches important matters.
The official Opposition have a great deal of sympathy with the hon. Gentleman's amendments. He describes them as probing amendments, and he is wise to do so, but I hope that the Under-Secretary of State for the Home Department, the hon. Member for North Warwickshire (Mr. O'Brien), is shortly to tell us that the Government are prepared to consider the issues with a view to making provision for them. The hon. Member for Leyton and Wanstead was present in the Chamber for much of yesterday's debates, so he will have heard me say that, quite separate from my Front-Bench responsibilities, I have a personal, long-standing interest, arising from my professional work, in the Data Protection Act and its operation.
The hon. Gentleman has made many good points. It is possible that the Minister might tell us that not all of the issues addressed by the amendments can be dealt with in the Freedom of Information Bill, but I hope that the Minister will be able to give his hon. Friend and the House an undertaking that the issues will be considered. Issues of protection of personal privacy are enormously important, and the hon. Gentleman is right to highlight the interesting overlap between the Bill and the Human Rights Act 1998. In due course, the Government might have to admit that they have got the legislative cost assessment completely wrong and that they have colossally underestimated the cost to the taxpayer of the new legislation. We might return to that matter later.
I do not want to detain the House. I simply wanted to express the Opposition's appreciation of the careful approach taken by the hon. Member for Leyton and Wanstead. We have a great deal of sympathy with his arguments. He has made it clear that he does not intend to press the amendment to a Division, but I hope that, either in another place or when the Bill returns to the House of Commons, we hear a great deal more on the subject. I shall be pleased if many of the hon. Gentleman's proposals are later incorporated in legislation, either in the Freedom of Information Bill or a later measure.

The Parliamentary Under-Secretary of State for the Home Department(Mr. Mike O'Brien): Probably for the first time, I agree with the hon. Member for Surrey Heath (Mr. Hawkins)—that is, in his tribute to my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) for the thorough way in which he has addressed important issues.
My hon. Friend described the complex interface between the Data Protection Act 1998 and what will become the Freedom of Information Act; he might also have mentioned the complex relationship that is superimposed on that by the Human Rights Act 1998. Each of those pieces of legislation will interplay with the


others in a complex way. My hon. Friend is right to say that we need to be sure that the juxtaposition of those measures does not cause unnecessary confusion.
I accept some of my hon. Friend's points, even though I cannot accept the amendments—I shall explain why not shortly. I accept his arguments about the need to examine precisely how the measures will interrelate and I undertake to consider, while the Bill goes through the other place, ways in which we can simplify and clarify the various relationships, especially that between the Data Protection Act and this Bill.
My hon. Friend has highlighted a difficulty: the Data Protection Act protects personal data, but some requests for information under what will be the Freedom of Information Act will be in respect of individuals, and so may affect personal data held by public authorities. Getting right the balance between the public's right to know, under freedom of information legislation, and the public's right to privacy, under data protection legislation, is a difficult matter. Struggle as we may, it is possible that we will not get that balance right for all time in this legislation. Over many years we may have to continue to adjust a complex balance.

Mr. Dalyell: It would not occur to me to ask my hon. Friend to answer off the top of his head, but while he is making inquiries, will he look at the position of Members of Parliament and data, particularly in relation to the case long ago of George Strauss v. London Electricity Board, when the Privileges Committee was overturned and it was decided, rightly or wrongly, that Members of Parliament should not have the protection that many thought they had at the time? These are extremely complex matters, but in the due course of events they should be looked at.

Mr. O'Brien: I certainly undertake to my hon. Friend to look at these matters. As he says, they are complex. The best approach that I could take would be to take advice from our lawyers about how the legislation might operate. I shall then write to my hon. Friend setting out how I think it might affect Members of Parliament. In due course it may be appropriate to discuss that advice in a wider context.
I shall look carefully at what my hon. Friend the Member for Leyton and Wanstead says. He asks which part of schedule 2 of the 1998 Act can legitimise the processing of personal data about employees. Fair processing of data may take place where the data subject gives his consent, the processing is necessary for the performance of a contract to which the data subject is a party, and if it is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by a contract. Those are some of the circumstances in which information may be given.
My hon. Friend asked about extending the Data Protection Act to include non-structured personal files. As his contribution showed, he is aware of the way in which we have so far progressed the 1998 Act. Because of the nature of non-structured files—that is, files held neither on computers nor in a filing system—we have taken the view that it is not appropriate for the full impact of the DPA to apply to that information at this time.
By definition, such files are not easily searched. We have extended the principles of accessibility and accuracy to those files, but not other principles. These files are not

covered by the DPA at present. It has been determined by the European Union that it would be too burdensome to business to extend full protection to that information. I was therefore a little surprised at the extent of agreement between the Conservative Front-Bench spokesman and my hon. Friend about extending such regulation to business. No doubt they can justify their wish to do so.
We have delivered the White Paper broadly as promised, but personal files will be covered by access, to some extent, under the DPA; other files may well be accessible via the freedom of information legislation.
I make no apology for going into a realm of some complexity as my hon. Friend did. It will take some time, but that is necessary in order to deal with an important and complex technical issue. The effect of amendment No. 107 would be to apply clause 13, the duty to disclose in the public interest, to information which is exempt by virtue of clause 38(2) in so far as it relates to the conditions referred to there—that is, disclosing personal information about a third party where disclosure is contrary to the data protection principles in the Data Protection Act 1998. A disclosure contrary to those principles would be contrary both to EU law and to the European convention on human rights, particularly in relation to article 8, as my hon. Friend identified. Despite that, the public interest could be taken into account when considering whether disclosure would contravene data protection principles. The amendment is unnecessary, because the public interest could be considered, but not to the extent that my hon. Friend the Member for Leyton and Wanstead seeks, through applying clause 13 to data protection principles.
If we extended the provisions of clause 13, as amended by our proposals, to the Data Protection Act, we would undermine the principles of the data protection directive. I am advised that that would place us in breach of European Union law. We would also be in serious danger of compromising our position in relation to article 8 of the European convention on human rights. My hon. Friend identified those issues.
If we are to get the complexities of the Data Protection Act 1998 and the Freedom of Information Bill right, it would be wrong to put ourselves in a position whereby we undermined European Union directives and possibly the Human Rights Act 1998, which comes into effect on 2 October.
It would be unwise to adopt the approach that my hon. Friend suggests. That does not mean that he has not raised substantive and important points. I want to consider the matter further. Perhaps I can advise him in due course about a method of proceeding. We cannot proceed in the way my hon. Friend suggests in the amendment, for the reasons I have given. Perhaps it might be helpful if he and I met to discuss the matter further.
Amendment No. 109 covers a slightly different matter. Section 55 of the Data Protection Act makes it an offence for a person knowingly or recklessly to obtain, disclose or procure the disclosure of personal data without the consent of the data controller. It would catch an employee of the controller who disclosed personal data about the controller's instructions. The data controller is not caught by section 55. The test of the legitimacy of his actions is whether they are consistent with data protection principles. If the data controller breaches the principles,


the Data Protection Commissioner may issue an enforcement notice against him. Failure to comply with such a notice is an offence.
Amendment No. 109 would make it an offence for the controller knowingly or recklessly to obtain or disclose personal data in a way that would seriously breach data protection principles. The amendment therefore conflicts with the general approach to enforcing data protection principles that is already enshrined in the 1998 Act. I understand my hon. Friend's point that, nevertheless, there may be reasons for doing that.
The data protection legislation has operated relatively well so far, however. There have been no substantial problems. The arrangements have worked well, and the commissioner has tried to resolve problems without the need for formal enforcement. She issued only five enforcement notices in 1998–99. We do not know of any prosecutions for failure to comply with a notice.
My hon. Friend identified a genuine problem. The legislation is currently operating reasonably well, but my hon. Friend has raised a serious issue. We cannot accept the amendment because it would conflict with data protection principles. However, as the years pass, we can keep the matter under review and, if we need to enhance the procedures for protecting those who want to ensure that their privacy is not invaded, we shall reconsider the matter. At this point, we are not in a position to accept amendment No. 109.
In many ways, prosecution is a blunt instrument. A conviction is a punishment and it can influence behaviour, but it is not targeted on the specific problem that my hon. Friend identified. Enforcement notices, on the other hand, address the issue in question: they identify the precise steps needed to improve behaviour and they clearly work. Although we could not be persuaded that immediate criminal action would add to them significantly at the moment, we do not have a closed mind for the long term. On that basis, I hope that my hon. Friend will withdraw his amendment, which he has said he is able to do.

Mr. Cohen: I thank the hon. Member for Surrey Heath (Mr. Hawkins) and the Minister for their kind words. By way of a return compliment, they are both very able too, but that does not preclude a good oral punch-up when we disagree. I also thank my hon. Friend for his considered response and I appreciate what he said. I shall read his remarks closely. He is right that there is a balance to be struck between the right to know and privacy. I support both aspects, but a private-public distinction needs to be made. There should be no excuse in respect of personal data for a public authority not to disclose, nor should there be loopholes at the interface between the Data Protection Act 1998 and the Bill which get public authorities out of disclosure.
I appreciate my hon. Friend's saying that his mind is not closed to some of my amendments and that he is prepared to meet to discuss them. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 47, in page 7, line 35, leave out subsections (3) to (5) and insert—

'(3) Where the duty to confirm or deny does not arise but it appears to the public authority that, in all the circumstances of the case, the public interest in disclosing the fact that the authority does or does not hold information of the description specified in the request outweighs the public interest in maintaining the exemption in question, the authority shall inform the applicant whether it holds the information.
(4) Where—

(a) the public authority holds information of the description specified in the request and has informed, or intends to inform, the applicant that it does so, and
(b) it appears to the authority that, in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption in question,

the public authority shall communicate the information to the applicant.'.—[Mr. Mike Hall.]

Dr. Tony Wright: I beg to move amendment No. 7, in page 8, line 8, leave out subsection (6).

Madam Speaker: With this it will be convenient to discuss the following: Government amendment No. 48.
Amendment No. 8, in clause 33, page 18, line 27, leave out "it relates to" and insert—
'its disclosure under this Act would, or would be likely to, prejudice'.
Amendment No. 9, in page 18, line 29, after "(b)", insert—
'the candour and frankness of'.
Amendment No. 10, in page 18, line 32, at end insert—

'(1A) Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of factual information.'.

Amendment No. 11, in page 18, line 32, at end insert—

'(1A) Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of the analysis of factual information or expert advice on a scientific, technical, medical, financial, statistical or other matter, unless its disclosure would, or would be likely to, substantially prejudice the formulation or development of government policy.'.

Amendment No. 91, in page 18, line 32, at end insert—

'(1A) Information is not exempt by virtue of subsection (1) insofar as it consists of factual information or the analysis of such information.
(1B) Information is not exempt by virtue of subsection (1) insofar as it consists of a description of the options which are or have been under consideration except to the extent that—

(a) to reveal those options at the time of complying with the request for information would or would be likely to prejudice the formulation or development of government policy; or
(b) it consists of the advice, opinion or recommendation of any person in relation to any such option.'.

Dr. Wright: We now come to the meat of the Bill.

Mr. Hawkins: It was pretty meaty last night.

Dr. Wright: I should put it on the record that the look delivered to me by my right hon. Friend the Home Secretary shows that he thinks that we dealt with the meat of the Bill last night, but I am afraid that today brings further meat.
On any test, clauses 33 and 34, with which the amendments begin to deal, are at the centre of the Bill. The more I read them, and I cannot count the times that I have been through them, the more astonished I become that the Government could have presented such an exemption in such a form. May I remind myself and the House of what they do? They begin in clause 33 with a huge and blanket class exemption, including one for
the formulation or development of government policy…
That is the first protection. They move on to a prejudice test exemption, which is the second category of protection. In providing that, they include in clause 34 a provision on
the reasonable opinion of a qualified person…
which produces a third layer of protection. In case it is still unclear that they are protecting absolutely everything that could conceivably be protected, they include a catch-all category called
the effective conduct of public affairs.
Four barricades have been erected against disclosure on policy formulation. That is a gigantic set of exemptions; no harm test would apply.
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Factual information underlying policy decisions would simply be exempt. I shall say more about that shortly. The commissioner could attempt to require the disclosure of any information to which clause 33 applies, including factual information, but Ministers could then veto any such disclosure. We began to discuss that last night.
I hope eventually to interest the House in amendment No. 10, which would remove factual information from the exemption altogether. I consider it the key element. It would bring the Bill into line with normal practice elsewhere—although we, the cross-party signatories, offer a number of alternative ways of approaching the same issue.
Let me briefly remind the House of the issues that are at stake. Clause 33(1) provides the blanket exemption. It excludes anything relating to
the formulation or development of government policy…Ministerial communications…the provision of advice by any of the Law Officers or any request for the provision of such advice, or…the operation of any Ministerial private office.
Clause 33(2) is particularly vicious, in that it permits Departments to refuse even to confirm or deny whether requested information exists.
The Government amendments would mean that the commissioner could order the disclosure of information relating to policy formulation in the public interest; but any order of that kind, including one relating simply to factual information, could be vetoed by Ministers.
It should be borne in mind that the provisions in clause 33(1) do not apply simply to high-level civil service advice and sensitive policy advice; they apply across the board. Nothing that crosses the desks of Ministers or their advisers in connection with policy would have to be disclosed, even after decisions had been made, announced and implemented. Factual information on which decisions are based and scientific advice, for instance, would be edited out. Submissions from lobbyists, enabling us to see what representations had been made to Government, would similarly be covered.
Clause 34 can be brought to bear on anything that is not already caught by clause 33. It applies both to Government Departments and to all other authorities. In so doing, it provides substantial additional grounds for withholding information, all of which, as I have said, will be established only by the reasonable opinion of a qualified person.
Only clause 13 provides any balance. If amended in the way proposed by the Government, it would require an authority to disclose information relating to policy formulation if it appeared to the authority that in all the circumstances of the case
the public interest in disclosing the information outweighs the public interest in maintaining the exemption in question.
However, there is no harm test, and therefore no description of the public interest that the measure is designed to protect. The absence of a purpose clause, which we discussed yesterday, is particularly important in this context. Such a clause is not available to frame a view on where the public interest might lie in relation to disclosure.
The point of clause 33(1) is to assert the belief that any insight into the working of Government—into the factual background against which policy decisions are made—is likely to be damaging. It takes no account of the fact that such limited disclosure might lead to more informed debate and to better understanding of some of the complex issues involved, and that it might reassure the public that issues are being thoroughly examined and settled after proper consideration.
The provision ignores the fact that more scrutiny may increase the rigour of the analysis. It even ignores the fact that when we have moved in that direction—as with publication of the minutes of meetings between the Chancellor and the Governor of the Bank of England—it has, on the whole, proved to be beneficial. When we have gone even further, by publishing the minutes of meetings of the Monetary Policy Committee, the sky has not fallen in. Such action has even been thought to be an act of strengthening generally helpful to policy making.
The Government's approach in that particular sphere of freedom of information is so perplexing largely because it is quite distinctly at odds with what they are saying about the approach that they now want to apply to policy making generally. Ministers have only to read the modernising government White Paper and all its associated documents to see that the Government's overall emphasis is on more access to the information on which policy is made, so that we shall have better policy making.
A rather interesting document was produced recently by the Cabinet Office, entitled "Wiring it Up: Whitehall's management of cross-cutting policies and services." The document is all about—I am sorry to lapse into the jargon—cross-cuttingness, which has now replaced joined-upness as the way of talking about these issues. Conclusion 28 could not be clearer:
The Government should: make available to Select Committees in both Houses, at an early stage in the policy process, information about the factual and analytical basis of cross-cutting policies, including joint appraisals.
The Government themselves say that provision of that type of factual information contributes to more effective policy making, but in their freedom of information provisions, that whole category of information is to be exempt. I am not inventing contradiction here; there is


contradiction here. On this issue, the modernising government initiative is the right one, and the freedom of information initiative is the wrong one.
As constructed, the exemption makes no sense either internationally or in policy making. It does not even try to distinguish between views, comments or opinions that have to be properly protected and the background—the factual basis—that has to be exposed to scrutiny and debate. The Government have taken that position—which is astonishing—but the weight of all the evidence, historical and comparative, is against it.
I shall not go through the whole long list, but I should like to remind the House of how we reached that position. In their White Paper, the Government promised:
we are prepared to expose government information at all levels to FOI legislation,
subject to a "test of simple harm".
The Home Secretary, in talking about these matters to the Select Committee on Public Administration, said that the
issue of factual or background information…is important and…I think on the whole ought to be disclosed.
Perhaps I could say in the margin that I do not at all think, and never have believed, that the Home Secretary represents the real obstruction in the matter. I am not sure how to put this—it may seem a preposterous suggestion—but I think that there are forces in the land that are even mightier than the Home Secretary.

The Secretary of State for the Home Department (Mr. Jack Straw): Fact or opinion?

Dr. Wright: Probably both. I will not identify those forces, but we have to try to find an explanation for the current drafting of clauses 33 and 34. I do not believe that my right hon. Friend the Home Secretary is the origin of them, but he has to defend them. He has promised, as in the quotation that I have just given, that he will try to open up that area. So far that has not proved possible.
The open government code that we currently operate under is stronger than what is now being proposed. Under the code, information relating to policy can be withheld only if disclosure would
harm the frankness and candour of internal discussion.
The code also requires that
facts and the analysis of facts
that Departments rely on in reaching decisions must be published.
The important Croham directive back in 1977 provided that what it called "factual and analytical material" should normally be published as soon as decisions had been taken. The assumption was that, from that point, the civil service and the policy-making machine would proceed on that basis. If they made that distinction, such information would be available.
There is a further point that was mentioned on Second Reading, but it is worth mentioning again. In evidence to the House of Lords Select Committee, the former Cabinet Secretary Lord Butler said:
When we were coming up to the 1997 election, knowing what the government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions

to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and changing practice to do that, but I think that people could very readily adapt to that.
We cannot get a more authoritative view on the practicability of the matter than that of a Cabinet Secretary who thought that Whitehall was about to be asked to do that because of what we had said.

Mr. John Greenway: In his role as the Chairman of the important Committee that deals with these matters, has the hon. Gentleman come across any evidence of difficulty with the existing code of practice? The Bill rows back significantly from that code of practice. I wondered whether the code of practice had created difficulties that might excuse those who have pressed for the Bill.

Dr. Wright: All who have taken an interest in the issue over the years, including those who have had to use the code—I refer in particular to the parliamentary ombudsman, who has had to oversee it—came to the conclusion that it was time to move from code to statute. They have decided that in this area we should have rights rather than simply an informal code.
There are examples from Scotland, Ireland and New Zealand. Other countries have proceeded in a way different from our Government's.
Clause 13(6) should be deleted. It requires authorities, when considering making a discretionary disclosure of information relating to what it calls the development and formulation of Government policy, to
also have regard to the desirability of communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
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Government amendment No. 48 would retain clause 13(6) but strengthen it in a minimalist direction. It would delete the words
also have regard to the desirability of
and replace them with the words
in particular have regard to the public interest in.
Under that approach, factual information relating to policy formulation remains exempt. A legal draftsman might consider that there had been movement, but people interested in ensuring access to factual information will believe that the situation remains essentially the same. Clause 13(6) therefore has to go, which is what amendment No. 7 would accomplish.
Amendments Nos. 8 to 11—and, in a different manner, amendment No. 91—offer a variety of ways of ensuring that the Bill contains the provisions that we consider necessary. Amendment No. 8 would introduce a harm test into each of the four class exemptions set out in clause 33(1). Amendment No. 9 would qualify the interest that is prejudiced by ensuring that clause 33(1)(b) talks about the "candour and frankness" of ministerial communications, as opposed to the simple "Ministerial communications" now in the clause.
I draw the House's attention to amendment No. 10 in particular. It is the simplest and crispest of all the amendments in this group:
Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of factual information.
The amendment would remove factual information from the scope of the exemptions relating to the formulation of policy.
No one pretends for a second that there are aspects of government that do not have to be protected. In such areas, confidence has to reign, deliberation has to be private, opinions and views must be exchanged and advice given. There has never been a suggestion that hon. Members do not understand that good government could not proceed otherwise.
However, we insist that some necessary distinctions should be made, and I can do no better than to quote Lord Nolan. Reflecting on his experiences as chairman of the Nolan committee a few years ago, he said:
One of the seven principles of public life which our committee propounded is openness. I am tempted to say it is the fundamental principle of the seven, because without it, in this age of scepticism, public confidence in standards of conduct will not flourish.
He went on to say:
There have to be limits on openness, of course, without which the process of discussion within government would become impossible. In this context, one can reverse C.P. Scott's famous dictum and say "facts are free but comment is sacred".
That is the essential point—facts are free. The public right of access is to the factual basis on which policy is made. Amendment No. 7 begins the process of ensuring that we get that. Amendment No. 10—on which I hope we will get a chance to vote later—will enable us to secure it directly.
When this Bill was promised, there was never any indication, suggestion or belief that it would not differentiate policy background and policy advice, but that is what we are being presented with in clauses 33 and 34. In that sense, the amendments are only inserting provisions that we thought the Bill would contain in the first place.

Mr. Greenway: I will not detain the House. As the Home Secretary will have gathered and will have been advised by his hon. Friends, I had a great deal to say on these issues in Committee. I need only refer hon. Members and those outside this place to the Hansard reports of the fifth and ninth sittings of the Standing Committee.
Even though it was intimated in Committee that the Government would have some regard to what was said, nothing has changed. Not only is the Bill as it was, but nothing on the amendment paper would appear to alter it. I find that disappointing for two reasons. First, it will be obvious from the debate in Committee, from what the hon. Member for Cannock Chase (Dr. Wright) said and from the cross-party consensus in support of his group of amendments, that the House is dissatisfied with the Bill as drafted. The hon. Gentleman is right in saying that this matter is the meat of the Bill. While we may have differences about the regulatory and enforcement arrangements and about who should have the final say on whether information is released, the sort of information that is released is at the heart of the matter. If we cannot agree in this place that facts and information that support

Government policy decisions should routinely be available, I ask the Home Secretary, what is the point of having the Bill?
I intervened as I did on the hon. Member for Cannock Chase not necessarily to restart the argument that the code of practice is better than the statutory basis that is the Bill and the fact that a right to information is being enshrined in statute, because I think that we have all accepted that that is probably the right way to proceed. I intervened because the code of practice provides for the release of information, facts and figures that support and underpin Government policy decisions. The hon. Gentleman alluded to the fact that it was not the Home Secretary who was the barrier to the matter being resolved, but others whose identity is more obscure.
I intervened because it seemed to me that something in the working of the code, which requires the release of those facts and figures, must have persuaded officials in various Departments that it would be a good idea to tighten things up and not to include the provision in the Bill, which underpins the code. I am not aware that there has been a difficulty, but I am not and have never been a Minister, although I hope that one day soon I shall be. However, that is for another day.
The second reason why I am gravely disappointed that the Government have not produced a change, having said that there is clearly a consensus in this place that the Bill is defective, is because it must be abundantly clear to Ministers that the other place will come to the self-same judgment. Notwithstanding the Prime Minister's attempts to ensure that he has a greater chance to overturn rebellion in the other place, I have a strong suspicion that this part of the Bill will be amended there and that we will have to debate this matter all over again, as we did with the Representation of the People Bill a few weeks ago. Then, we advanced our arguments on one issue after another and the consensus view clearly supported them, but we had to rely on the unelected second Chamber to ensure that some democracy in this Parliament was evident to people outside. That is a matter of profound regret.

Mr. Straw: Am I to take it from what the hon. Gentleman says that his idea of democracy is that the losers win?

Mr. Greenway: No. My idea of democracy is that when it is abundantly clear that the view of this House—the elected Chamber—is that Government policy is unacceptable, that view should prevail over the opinions that will ultimately prevail not because of votes in this place but because, as has happened so many times before, the Government are persuaded that they cannot get a Bill through the other place without changing it. How much better it would be if those of us who are elected to this House could frame the law as we all think best, instead of the Home Secretary and Ministers relying on the three-line Whip for the vote of Labour Members who are not here to listen to the arguments.

Mr. David Davis: Is it not also the case that one important aspect of democracy is that the party that is elected carries through what appeared to be a manifesto commitment to freedom of information?

Mr. Greenway: My right hon. Friend is right. In essence, not only was this a manifesto commitment, it was


a White Paper promise. However, I do not want to stray beyond the parameters of the specific amendments before us. I am sure that there will be other opportunities to debate these issues in the wider context.
I cannot accept that the release of information that is available to Ministers and has informed their policy decisions should not be generally available to members of the public as well as to Members of this House under a statutory freedom of information arrangement. This is at the heart of what we are attempting to do. I am very disappointed that Ministers have completely ignored the views put forward in Committee, which are so clearly shared by right hon. and hon. Members on both sides of the House.
I look forward to catching your eye in a few weeks' time, Mr. Deputy Speaker, and speaking on this measure once changes have been proposed in the other place. I hope that, on that occasion, Ministers will eat humble pie, accept the change and not force through a reversal. I cannot believe that a Freedom of Information Bill worthy of the name does not provide for the release of information on Government policy, but this Bill clearly does not do so.

Mr. Tony Benn: First, I congratulate the Members of the House on both sides who have fought this campaign. I regard this as the beginning of a recovery of power by the legislature in dealing with the Executive. This debate and its conclusion will be seen as very significant in the development of parliamentary democracy.
Of course, there have been some moves towards this. The Government of whom I was a Member introduced Green Papers to allow consultation. However, the Bill is a disappointment. The older I get, the more I realise how difficult past reforms were. I am not sure that the Home Secretary would encourage the publication of Hansard. He might well say—[Interruption.]—Hon. Members laugh, but there was a battle; Hansard was put in prison. I am not joking. The argument would be that it would not be in the public interest for the public to know what was said in Parliament.
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We are approaching the heart of the democratic deficit. Ministers say, "The democratic deficit means that I must decide, not the House of Commons". However, the fault line in democracy does not lie in what Ministers say. When we first arrive at the House as MPs, we all have to take an Oath of Allegiance to the Crown. As this is the High Court of Parliament, I always assumed that I should take an oath to tell the truth, the whole truth and nothing but the truth. That seems to be an appropriate oath for a Member approaching the High Court of Parliament. Privy Councillors take another oath. The truth is that, at that moment, the Executive, in the form of Ministers, are standing against Parliament and the public interest. That is what the matter is really about.
Ministers are often kept in the dark. When I was in the Cabinet, I once said that I wished we had freedom of information for Cabinet Ministers—but that was seen as an inappropriate joke. However, I should be very surprised if the Home Secretary knows much about what

the security services are doing. If he does, he is the first Home Secretary ever to do so. He is a manager and we are representatives. The division between the Government and the House is the real division.
The longer I served in Government—I was a Minister for 11 years—the more I found that it was easy for people to confuse the public interest with the convenience of Ministers. That is easy to do; if it embarrasses Ministers, it cannot be in the public interest—but in fact, it is not in the interest of Ministers.
That argument leads to another point: I cannot think of any secrets that I ever knew. I do not want to disappoint those Members who are hoping for office, but those of us who have held office know that there are few secrets in government. I knew what would be in the Budget 24 hours before it was announced, and was afraid that I should sleepwalk and tell somebody. I knew that we were going to devalue the pound 48 hours before we did so. I knew the Government's position on negotiations with foreign Governments—that all came out when the negotiations took place. I knew what would be in the honours list before it came out—but everybody knows that.
In the old days, if the fact that a man was to be given a peerage was leaked, that ruled it out completely. Nowadays, the immigration laws have been amended; if one agrees to live here, one is put in the House of Lords. However, that is another question.
The real reason why I want to contribute to the debate is because of the nuclear industry, for which I had responsibility for many years. Recent events at Sellafield confirm what I learned by experience; even as a Minister—let alone a Member of Parliament—I was never told the truth by the nuclear industry. For example, I found out about the fire at Windscale—now called Sellafield—only when I visited Tokyo. My officials had never told me about it. When I asked them why they had not done so, they said, "It was before you were a Minister".
When the Americans discovered that there had been an explosion at Khysthm, the major Soviet reprocessing plant, I was never told. I asked the chairman of the Atomic Energy Authority, "Why didn't you tell me?" He replied, "We were told by the Central Intelligence Agency not to tell British Ministers, because it could create concern about the safety of nuclear power".
It was not until I left office that I discovered that, while I had been making honest speeches about atoms for peace, all the plutonium from our civil nuclear power stations was going to America to make the bomb. The atoms for peace power stations were bomb factories for the Pentagon. I felt affronted by that. Had people known the facts at the time, the development of the debate on nuclear power and the nuclear industry would have been much better informed. We should not have had the problem at Sellafield, because the matter would probably have been dealt with earlier.
These provisions are probably the most important in the Bill. After 30 years, we can find out at the Public Record Office what Ministers have done, but if we want the public to have an influence on their Government, they must know about the debate before it is concluded. I realise that there are arguments about fact and advice, but I have never believed that information about the nature of Government policy making was damaging.


What is damaging are leaks, malice and so on. If the public know that the Cabinet is considering how to respond to the BMW crisis, for example, and about the various options, that is extremely sensible. People with knowledge of the situation could contribute. The trouble with the official secrets that surround the Government is that they lock Ministers in with their officials.
Some Ministers are rather like constitutional monarchs. They can say yes or no to their permanent secretaries. However, once we let it be known publicly that we are considering a matter, we make available to Ministers a range of advice that they would not be able to get from within Whitehall and that allows them to become umpires between their civil servants and public expertise outside. I therefore make the case—I hope that it does not shock anyone—that open government and freedom of information are good for Ministers, not just for Parliament and the public. That argument needs examination.
I had always been in favour of freedom of information, but my experience of ministerial office made me even more convinced of the need for amendments of the type that my hon. Friend the Member for Cannock Chase (Dr. Wright) has introduced. Therefore, I hope that the campaign succeeds. I think that it probably will. Whether we have to depend on the House of Lords is a slightly painful thought for me because, as a representative of public opinion, the House of Lords is very shaky.
I will not go into the democratic credentials of the other place, but at least we are sure that its members will all be there after the next election, so they are more secure than any of us. I never thought that they spoke for the people, but they provide a pause to allow public opinion to form itself. I hope that public opinion makes it clear to the Home Secretary and others that we are not prepared to accept that we should be treated as children and left outside the inner knowledge of what happens. It denies Ministers the advice that they need and the public the opportunity to participate in some way in their future, rather than being just spectators of their fate.

Mr. David Heath: It is always an enormous privilege to follow the right hon. Member for Chesterfield (Mr. Benn). Indeed, it is a privilege to take part in the debate because it slightly restores one's confidence in the Chamber doing its job of testing and trying to improve legislation.
I have listened with care to what hon. Members have said, particularly the hon. Member for Cannock Chase (Dr. Wright). He advanced all the arguments on the amendments that stand in his name, to which I have added my own. My only regret is that I appear to have omitted to add my name to amendment No. 91. Had I noticed that earlier, I would have added it, because I agree with it, too.
The hon. Member for Ryedale (Mr. Greenway) said two things that gave me concern. He expressed a sense of defeatism that the measure had to go to the other end of the corridor before it could be put right and brought back. Last night, there was a conversion of almost Pauline proportions from the Home Secretary during his long speech. I still hope that he will listen to the debate and realise that there is a serious flaw. Amendment No. 10 is simple and concise, and he could easily concede to it.

It would immeasurably assist the Bill. Therefore, I still have a slight, perhaps desperate, hope that, even today, we will see a result on that important issue.

Mr. Greenway: The hon. Gentleman tests my credulity. We spent some 18 sittings in Committee making similar comments day after day, but concessions came there none.

Mr. Heath: The hon. Gentleman is right. I remember every one of those sittings, as he no doubt does. There was a tendency to feel that one was developing a rather flat patch on the front of one's forehead as one banged one's head against a solid wall. Nevertheless, we have had movement in the past two days. Let us celebrate that and look for more.
The hon. Gentleman sought evidence from the experience of operating the code to suggest the need for the amendment. I do not believe that there is any need for evidence.

Mr. Greenway: The need was not for the amendment, but for what is in the Bill.

Mr. Heath: Precisely. The hon. Gentleman sought evidence from the operation of the code to indicate the need for what is in the Bill. He need not look for evidence, because the instinct of any bureaucracy is not to want to release information that it does not have to release. That is no criticism of the civil service; it is simply a fact that it is always easier to maintain secrecy than to divulge information. I am tempted to call these provisions the Sir Humphrey provisions, except for the fact that they extend well beyond Sir Humphrey and the permanent civil service into areas of policy formation.

Mr. Simon Hughes: Following the point made by the hon. Member for Ryedale (Mr. Greenway), is not it frustrating that, although there have been small but welcome concessions, what we expect to happen at the other end of the building will mean that more concessions will inevitably be needed before the Bill is passed? It is nonsensical for the Government to be on the defensive all the time so that it looks as if concessions are having to be dragged from them, when they could have accepted a good proposal and looked as if they believed in it.

Mr. Heath: My hon. Friend is absolutely right; it is undignified for any Minister to have to be dragged, with his heels digging into the sand, every inch of the way towards a destination that he declared to be his aim.
I have not heard any hon. Member who has spoken in support of the amendments suggest that there is no need for a degree of protection for policy formation in government. No one has suggested that it is possible to conduct government in a goldfish bowl and that there would not be an inherent difficulty if every piece of policy advice given to Ministers were released. That would make it impossible for the mechanisms of government to work. We all recognise that because we live in the real world, not in an imaginary one. However, that is a long way from saying, as the amendments do, that factual information and expert analysis should not be released as a matter of course.
The Home Secretary suggested last night that facts would have to be communicated throughout Departments of State on Post-it notes to avoid coming under the Bill's provisions, but that is nonsense. That does not happen in overseas legislatures that have freedom of information legislation, and it would not happen here.
The right hon. Member for Chesterfield (Mr. Benn) is absolutely right to say that the best way to improve governmental and legislative mechanisms is to have an informed debate. In this country we often cannot have such a debate, as those who want to engage in the argument do not have the facts at their disposal because of the absurd culture of secrecy that has been fomenting for so long. The Bill is intended to address that. The amendments, particularly amendment No. 10, are crucial in that regard. I agree with hon. Members who have said that we need to test the opinion of the House if the Home Secretary is not minded to accept it, or a variation on it.
The Home Secretary might help the House on another matter. The workings of clauses 13, 33 and 34 will depend on his announcement last night. It would greatly assist us in considering the Bill if we knew whether the Government intended to proceed with new clause 6. The amendments that the Home Secretary announced last night, and his preparedness to consider other amendments, mean that it would stretch the loyalty of even the most credulous Back Bencher to suggest that new clause 6 was a credible amendment to the Bill and for the Home Secretary to assert that he does not intend to maintain it in its current form or anything recognisably like it. It would assist the House if he made an announcement on new clause 6 today, so that we could consider it in the light of the amendments.
The Home Secretary has shown courage and fortitude, as have the Government, in introducing the Bill, but if he is not prepared to be tough on Ministries, tough on civil servants, tough on secrecy and tough on the causes of secrecy—which are very often those same civil servants—the Bill will have failed. I hope that he will listen to the arguments of hon. Members on both sides of the Chamber because they are cogent and are intended to improve the Bill.

Mr. Mark Fisher: I am an optimist, so I hope that we are simply getting the tone of the debate slightly wrong, because colleagues on both sides of the House seem to have forgotten what happened last night. As hon. Members have said, we had the remarkable sight of my right hon. Friend the Home Secretary, when tested, beginning to recognise the huge imperfections of the Bill that he was defending and rewriting the clause that is at the heart of the Bill as he stood at the Dispatch Box. Rightly, he got credit for that. Let us be clear: last night the Home Secretary eased the grip of the powers at the centre of the Bill and effectively transferred them to the Information Commissioner rather than allowing new clause 6 to give him and his ministerial colleagues a veto.
In answer to the hon. Member for Somerton and Frome (Mr. Heath), of course my right hon. Friend will not move new clause 6; he tore it up in front of our eyes last night and the bits of paper were at his feet by the end of his

speech. That new clause no longer exists. Of course we trust the Home Secretary's word, and as my right hon. Friend the Member for Chesterfield (Mr. Benn) said, his remarks are in Hansard and we can clearly see that he redrafted the provisions—and all credit to him.
If the Home Secretary can redraft a clause that was at the heart of the Bill's powers, these amendments, which are about the scope of the Bill and areas of exemption, particularly those relating to formulation of policy, should not present such a problem, although with the powers that were discussed last night they are one of the twin pillars on which the Bill is constructed. The Home Secretary has said on Second Reading and on many occasions since, inside and outside the House, that he accepts the point addressed by the amendments.
The neutral but important facts and data that the Government use to make decisions ought to be in the public domain so that the public, the press and hon. Members can scrutinise them and judge whether the Government are behaving wisely and well. There is a crucial and obvious distinction between those facts and the debate, to which the hon. Member for Somerton and Frome has just referred, between Ministers, and between Ministers and civil servants, about how policy will work. No freedom of information legislation in the world gives access to that debate, because the Government's progress would be impeded if that dialogue were not free to be speculative and political.
The Home Secretary understands that distinction, and he has said many times that the only impediment to his accepting the amendments is that he could not find the right form of words to make the distinction between fact and opinion. We hope that we are helping him to do so by tabling the amendments. The amendment in the name of the right hon. Member for Haltemprice and Howden (Mr. Davis) is excellent, which is why my hon. Friend the Member for Cannock Chase (Dr. Wright) and I have put our names to it. There are various ways of making the distinction between fact and opinion, and the Irish Freedom of Information Act contains a clear, simple way of doing so. It is crucial that such a distinction is made.
Last night, the Home Secretary addressed the much more difficult political problem of the commissioner's powers vis-a-vis his powers and those of other Ministers, so I live in hope that he will be able to solve this problem about the Bill's scope. He understands and accepts that it does not make sense to say that the facts on which Ministers base judgments should not be available, so this is a molehill for him to climb, although it is important because it goes to the heart of the Bill, as my right hon. Friend the Member for Chesterfield said.
We are talking about policy. That word, from its Greek origins, has the same root as "politic" and "politics". The debate relates to the formulation of policy, and that is why it is so important. We cannot do our job on behalf of our constituents and on behalf of this country unless we are on a level footing with the Government and have access to the same factual information. Only then can we judge whether or not they are making wise decisions and wise use of Government money. It is impossible for the press to make that judgment unless it is on that footing.
Ministers have often provided information. However, they also hold back information that is perhaps arguable and can be read in two ways. That is why the legislation is so important. We must make it absolutely clear that


Parliament and individuals have the right of access to information so that we can be treated as grown-ups on a level footing with the Government. We need to know what they know so that we can judge whether they are acting properly and well on our behalf.
In looking at the Bill, one has to agree with my hon. Friend the Member for Cannock Chase, who set out the background to clauses 33 and 34 very well, that the parliamentary draftsmen have done a superb job. They have erected an amazing defensive edifice for the Government. They have built a virtually impregnable fortress; it is a high place, an acropolis. My hon. Friend described its architecture, which includes the factual class exemption; the prejudice test; the extraordinary concept that only certain people are qualified, which is extremely dangerous and worrying if it does not include the Information Commissioner—and according to the Minister it does not—and the effective conduct of public affairs.
The provisions are a mound, a rampart, a bailey, a keep to protect the Government—but from what? At one level, they are protecting the information that the Government have at their disposal and wish to share with the rest of us only by their grace and favour and on their own terms. That is an unacceptable basis and it is at the heart of the Bill. It is why we have needed such a Bill for the past 20 years and why some hon. Members have been arguing for one for so long and on such terms.
If it maintains that enormous defensive rampart around Government policy, the Bill will cease to be a freedom of information Bill, and will become instead a protection of information Bill. That is not what it is about. It contains a huge class exemption that has to be changed and the means of doing that are at the disposal of my right hon. Friend the Secretary of State. As the hon. Member for Somerton and Frome has just said, there is nothing threatening about what we propose: every piece of freedom of information legislation in the world makes a distinction between fact and discursive opinion.
As my right hon. Friend the Home Secretary says that his great problem is not being able to find a form of words that would tease out the distinction between fact and subjective advice, let me quote from the Irish legislation, which is the most recent as it is only two years old. It states that materials that should be released include matter
used or intended to be used by a public body for the purpose of making decisions, determinations or recommendations and factual, including statistical information and analyses thereof and the reasons for the making of a decision by a public body.
Those are simple words and concrete concepts. If the Secretary of State is listening, he must surely realise that there lies salvation. There must be a way in which he can grasp something or adapt it and get the excellent parliamentary draftsmen who have done so well at creating defensive ramparts to do something constructive. If my right hon. Friend does not like our amendments or those tabled by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), which we shall discuss in a moment, he has here the means at his disposal.
It is inevitable that the Bill has to change. We cannot seriously pass freedom of information legislation that will not allow the public the right of access to the same factual information as the Government. Factual information is innocent; it is without bias and without weight.

Undoubtedly, there are certain areas where one category of information merges into the other, which is why the Bill needs to be clear and why it contains plenty of provisions to protect the Government. As my hon. Friend the Member for Cannock Chase said, they are hedged around. Even if we get round this point, the ramparts and baileys will still exist. There is no danger that the Government will be embarrassed, but they should recognise that we should have access to the same facts as they have. I find that not a revolutionary concept, but one of common sense.
My right hon. Friend showed last night that he had the great good sense and the courage to adapt the Bill as he stood at the Dispatch Box. I hope that he will do so again on this group of amendments.

Mr. David Davis: It is a pleasure to follow the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). Like the hon. Gentleman and the hon. Member for Somerton and Frome (Mr. Heath), I am optimistic about the progress of the Bill. I commend the Home Secretary for his comments last night. I hope that they will be reflected in his not moving new clause 6, and tabling a new clause in another place to reflect what he said last night, subject to legal advice.
It is also a pleasure to speak in the same debate as the right hon. Member for Chesterfield (Mr. Benn). It is nice that even in his 75th year he is still a fount of dangerous ideas, although when the Home Office finds that Hansard fails the harm test and classifies it, I shall hold him personally responsible.
I want to speak to amendment No. 91, whose aim is clear cut. It is wider than some of the other amendments in the group, all of which I support, in that it seeks to bring into the open facts, options and analyses relating to any decisions, but not advice. I shall not read out the full text of the amendment, but I should like to thank Maurice Frankel and his staff at the Campaign for Freedom of Information for helping me to draft it, particularly considering the risk of collective seizure when someone with my hard-edged reputation in these matters rings them up and asks for help.
At the risk of being tedious, let me repeat what I said today about my attitude to the amendments. They are proposed not just for the sake of freedom of information, but for their effect. The test is threefold: does it inform debate; does it reinforce democracy; and does it improve government? By improving government, as the right hon. Member for Chesterfield said, I do not mean making government more expedient, smoother or more comfortable either for the Ministers or the Sir Humphreys who serve them, no matter how well intentioned, capable and public spirited they are. The test is whether it helps the delivery of good government for the citizens of this country. In my judgment, amendment No. 91 passes all those tests. Indeed, it would significantly improve the position.
The amendment would explicitly exclude direct advice to Ministers. As a former Minister, I feel strongly that that should be properly protected. First, it should be protected because Whitehall believes that its inclusion would affect the candour of advice. The policy civil servants who generate and deliver advice believe that they would be jeopardised if that advice were brought into the open. I have some sympathy with that view. I well remember


the pain that I felt during the general election when I was attending a negotiating conference and I read a newspaper saying that Sir Stephen Wall, our ambassador in Brussels, would be moved or dismissed by an incoming Government because they did not approve of his views. That did not turn out to be the case. Whoever put those ideas about, the Government very sensibly kept Sir Stephen, and kept him in that job, where he does an excellent job for the present Government, as he did for the last.
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Similar rumours float around about other senior, and very capable, civil servants. I suspect that they all come from the kindergarten—I think that that is the correct collective noun—of special advisers that now populates Whitehall. However, the following is not meant as a party political point—it is meant to apply to any Government. If policy advisers believed that they could not give clear, candid advice without risk to their own career, it would be a very bad thing and would undermine proper government.
There is a second reason for protecting the privacy of such advice. I believe that, as the right hon. Member for Chesterfield expatiated, the Bill, if properly amended, would change the power balance in Whitehall between Ministers and their civil servants. It would reinforce the position of Ministers, just as it reinforces the position of the House with respect to Ministers, and the public with respect to all of us. However, if the advice area was brought out into the open, it would have the reverse effect.
I speak as someone who, as a Minister, probably turned down or reversed about a third of the advice given to me. That would have been much more difficult had it been possible for that advice then to be used against me in a debate. Therefore I believe that it would be a bad thing to bring advice into the open. It would reverse the power balance and make the advice of individual civil servants too much of a bind on Ministers. For two reasons, then, I strongly defend the advice area, as has every hon. Member who has spoken.
However, that is not to say that the exemption should be used to protect all the other areas that amendment No. 91 addresses. As the hon. Member for Cannock Chase (Mr. Wright) said in his eloquent opening to the debate, the Bill as it stands falls short of the 1977 Croham directive—Lord Croham was probably one of our greatest permanent secretaries—and falls short of the 1994 code, in which I had a brief involvement, although all the credit for that code falls to William Waldegrave. The Bill falls short of the allowance for facts and analysis in both of those prior decisions in Whitehall.
As I understand it, the aim of this class exemption is to protect the process of policy formation. There can be no harm to the process of policy formation in exposing the facts. The facts cannot be altered; in fact, such a provision will be advantageous because the people presenting the facts will be more rigorous, in the knowledge that the facts will enter the public domain. If the facts are available during the debate, some of the facts—I am especially thinking of scientific data—may be open to some challenge, and that, too, would inform and enhance our debate and, as such, improve our government. Those

reasons should lead us to common ground on the subject; they should lead us to believe that such freedom of information will advance the cause of the Government and of Ministers.
There is another consideration here—the attitude of the public to the Government. It can only reassure the public if they know the factual basis of policy—if they are not treated as though they were a group to be patronised by the Government, to be told what is good for them, but can see for themselves that they have access to the facts on which decisions are taken.
Much of what I have said applies to all the amendments that have been debated so far, but I also believe—this is the point of amendment No. 91—that, in most cases, the process will not be harmed by airing the options. In fact, there is a benefit because it would lead the people drawing up the options for the Minister to be more complete and leave nothing out.
It was my experience as a Minister—I am sure that others will have the same feeling—that one often felt that one was given the choice of options Nos. 1, 2 and 3 and one wondered, "What about Nos. 4 and 5?" The amendment would lead to options Nos. 4 and 5 being put to the Minister; it would lead the options to be better developed than they currently are. That would be a benefit to Government, and it would inform debate. Think of the difference of the debate in the House if we were not simply saying across the Floor of the House, "Yah-boo sucks; we do or do not like that option", but were talking about the various options that were available to the Government and could be developed and could be pursued by the country.

Mr. Tony Benn: I agree with absolutely everything that the right hon. Gentleman is saying, but is it not also a fact that the acceptability of Government decisions to the public would be greatly increased if the public knew that all the options had been considered, and that even the ones that had been rejected had at least been considered? The absolute unanimity of Ministers on everything actually makes Government lack credibility, whereas the opening up of the options, the debate about them and the publication of the conclusion is reassuring to people who otherwise think that their arguments might never even have been examined at the top.

Mr. Davis: As ever, the right hon. Gentleman is ahead of me and about three sentences ahead of my comments, so he has shortened my speech, which is no doubt to the pleasure of the House. He is absolutely right in that respect. My proposals cannot be a bad thing for a Labour Government or any other Government in that respect. It must be to the benefit of our democracy for the public to have greater confidence in the decisions taken on their behalf.
Of course, there will be times when the options are not appropriate to be aired. I worked in the Foreign Office for three years, and I had to deal with negotiations in which there were options that one perhaps did not want to play out in the public domain before they turned up in the European Council or NATO or wherever we were negotiating; but such times are quite limited.

Mr. Greenway: There are exemptions for them.

Mr. Davis: My hon. Friend, from a sedentary position, says that there are exemptions for them. I encompass a


harm test in amendment No. 91, and the harm test should be rigorous, but it will not greatly limit freedom of information.
For three years during a European negotiation leading up to the treaty of Amsterdam, I appeared almost once a month before the Select Committee on European Legislation and discussed as openly as possible with its members what was happening, and from time to time I had to say, "I am sorry; I cannot tell you that" and it was understood on all sides. Therefore I doubt that the harm test will be a controversial issue. Most of us would accept that it would work easily, work well and work with the support of the House.
In practical terms, the hon. Member for Cannock Chase—the leader of what is now, I suppose, the Cross-Bench group of Members of Parliament—laid out the point that Lord Butler—Robin Butler, as he was then—made when he was Cabinet Secretary, when he told the House of Lords Select Committee that his senior colleagues and he had given some thought to how they
could…structure submissions to Ministers in a way that would enable us easily to separate the background…from…subjective advice.
In that context, "the background" means both facts and options. And he is not alone. Terry Burns—now Lord Burns—said something very similar in that respect. Two of the most senior of our previous permanent secretaries, once free of the shackles of Whitehall and free of the close mafia of the Sir Humphrey club, actually say, "This is possible. This can be done, and done in a way that will not harm—indeed, will improve—the process of government in this country."
Therefore, it can be done here, on the basis of the facts as they exist, and on the basis of the experience of many of us in government; and it has also been done readily elsewhere. Consider some of the exclusions from the exemptions that exist in other countries' freedom of information legislation, such as Canada's Access to Information Act and similar legislation in Ireland, Australia and New Zealand. Such exclusions include factual and statistical material—in Ireland, there is an exclusion for the analysis of factual or statistical material—the reasons for a decision, or information publicly cited as the reasons for a decision; scientific research or field research; expert scientific or technical reports or analysis; expert opinion or analysis; the advice of external consultants or persons other than a Government official, which relates to the point that has been made today about lobbyists; a commissioned report of a Government body or interdepartmental committee, other than one reporting to the equivalent of the Cabinet; a feasibility or other technical study or plans and budgetary estimates relating to new or existing programmes; efficiency studies; economic forecasts; public opinion polls; environmental impact studies; product testing results; appraisals and valuators' reports. I cannot imagine how any of that would lead to a problem for government, and my amendment seeks to make such information available.
In New Zealand, the provisions go further. The legislation there says that advice itself can be brought into the open. There are problems with that but, in many cases if not universally, New Zealand publishes advice at a post-decision stage. That goes further than I or the House

would wish. However, that shows that my amendment is not at the cutting edge of the argument; it is in the firm, safe centre ground.

Mr. Jon Owen Jones: I thank the right hon. Gentleman for giving way, especially as I wanted to intervene on him in yesterday's debate. He has considered whether the release of information to the public could cause any conceivable harm to government. Let us consider the BSE crisis. For a period, the then Government believed that there would be damage to the industry if the public were made aware of the facts that were before the Department about the levels of BSE in cattle. Releasing such information would have caused harm to the Government or their policy of the day, but it would have demonstrably been of great benefit to the public. That is the purpose of the Bill.

Mr. Davis: I agree entirely with the hon. Gentleman. I do not know enough about the information available on BSE in that period, but he is exactly right. We should separate a judgment about the public interest from a judgment about political or personal interest.
As Chairman of the Public Accounts Committee, I deal with cases in which—to put it bluntly—blame is apportioned. The simple fact is that it is human nature to try to avoid blame. Even when we think that we are making impartial decisions, such supposedly impartial decisions are influenced by an instinct—a comfort factor—that relates to our own position. When I was in government, I had to make decisions that I would have preferred to have been made by someone who was entirely independent of the government process. I agree with the hon. Gentleman that it is much better to have a provision in the Bill to cover such decisions.
I support the amendments for three reasons. They would properly inform public debate, significantly enhance our democracy and materially improve our government.

Mr. Gordon Prentice: I wish to speak briefly on this group of amendments on the formulation of Government policy. I do not know whether you will rule me out of order, Mr. Deputy Speaker, because I am not sure whether Liberal Democrats are involved in the formulation of Government policy. However, much information that should be freely available is withheld not just from the public but from Members of Parliament, to avoid embarrassment and for reasons of party management.
About 18 months ago on 10 November 1988, a declaration was made by my right hon. Friend the Prime Minister and the right hon. Member for Yeovil (Mr. Ashdown) that we could expect ever closer union between the Labour party and the Liberal Democrats. The two parties are in coalition in Scotland and, in the past few days, we have learned that my right hon. Friend the Prime Minister—there is no great secret about this; it has all come out—has said that his greatest regret was that he did not bring the right hon. Member for Yeovil into the Cabinet in May 1997. We know from newspaper reports and the right hon. Gentleman's book that that option was discussed. Two Labour members of the Cabinet would leave, and two Liberal Democrats would come in.
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I decided to find out a bit more about this new constitutional innovation, the Joint Consultative Committee with the Liberal Democrat party. Over a year or 18 months, I tabled any number of questions about it and met a brick wall. I wanted to know when the committee met and I was told, "Secret. Ruled out." I wanted to know not who said what but what was on the agenda, and I was told, "Secret. Ruled out." I wanted to know who from the Labour side and the Liberal Democrat side participated in the Committee and I was told, "Secret. Ruled out."
That is ludicrous when I can pick up a newspaper and find out, as I did on 14 December 1999, because Liberal Democrats tell the world what is discussed at the meetings. However, when I go to the Table Office, I see wrinkled brows and people there consult their tomes to see whether I should be allowed to table a simple parliamentary question about what is on the Committee's agenda. In The Independent on 14 December, I read that at a meeting of the Committee, the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan)—

Mr. Deputy Speaker(Mr. Michael J. Martin): Order. I remind the hon. Gentleman that he must keep to the amendment. He is telling us that he was seeking information, but he is going into detail that has nothing to do with the amendment. He can tell these stories outside the Chamber.

Mr. Eric Forth: Oh no!

Mr. Deputy Speaker: I inform the right hon. Gentleman that I am in the Chair.

Mr. Prentice: Let me move rapidly on to a simple point. Will Ministers tell me whether the Bill, as unamended, would allow me to obtain the information that I seek on what happens in the Joint Consultative Committee should it make proposals for voting reform and reforming the European Parliament, the European Commission and so on? If not, should I rely on the amendments? I want an answer to my questions.

Mr. Robert Maclennan: This has been an extraordinarily good debate, but I wanted to latch on to the speech of the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) who suggested that we had misjudged the nature of the occasion and that we were about to see a revelatory conversion from the Home Secretary. All of us who are anxious to see the amendments accepted—they lie at the heart of the Bill—have suffered a little from the right hon. Gentleman's quite deliberate attempt to put us off the scent early in the debates by telling us that the matter is a question of drafting and designing words that would express what he so much wanted to do.
I know that the right hon. Gentleman is a highly intelligent man and not a disingenuous Home Secretary. However, his argument stretches credulity a little. The hon. Member for Stoke-on-Trent, Central suggested that factual information was neutral, but facts are knowledge and knowledge is power. If power is distributed to the people, the people will have the power. Those who exercise power in the name of the people draw a clear

distinction in their own minds between the people participating in the decisions and taking the decisions in the name of the people.
We are engaged in a fundamental constitutional argument about the role of the House and the Executive. It is not a little problem of definition or of finding the right words.

Mr. Hawkins: In the right hon. Gentleman's analysis, which I am following carefully, of what the Home Secretary was trying to do last night, does he agree that a particular phrase used in one of the memorandums to the Select Committee on Public Administration is particularly apposite to what the Home Secretary was trying to do and to what the right hon. Gentleman is rightly criticising? The phrase was
there is no sop like an old sop.

Mr. Maclennan: I was focusing not so much on what the Home Secretary did last night as on what he did on Second Reading, when we were considering the matter that is now under discussion.
I am also on the alert. The Home Secretary's intervention on the hon. Member for Ryedale (Mr. Greenway) amounted to this: "We will know what the House wants when it has voted on the issue." I suppose that that is a conventional view of the way our parliamentary democracy works. However, I think that it is a gross distortion, and one which we should recognise for what it is.
The issue before us was debated extensively on Second Reading. It was then debated lengthily in Committee. During these debates, not one voice has been raised in the House in support of what is in the clause. Following the vote, whatever the Home Secretary may say about the House having spoken, I advise our colleagues in another place, however they may have got there, that the opinion of the House should be judged by what it has said. In this instance, it has said in unmistakable terms that if factual information is not to be made available as a result of the Bill, the Government are performing a monumental U-turn. They are betraying the White Paper produced by the right hon. Member for South Shields (Dr. Clark), going back on their undertaking to the electorate in the Labour party's manifesto and repudiating the agreement entered into with the Liberal Democrats prior to the election, which was one of the reasons that led to the setting up of the Joint Consultative Committee with the Liberal Democrat party, to which the hon. Member for Pendle (Mr. Prentice) alluded.
This is a matter of major importance and not one that allows for nice distinctions to be drawn and for difficulties with parliamentary draftsmen to be alluded to as the only reason why the Government cannot move from their position. I am optimistic that the Home Secretary, if he is to intervene in the debate, will not rely on drafting, for to do so would take us all for suckers.

Dr. David Clark: I shall be brief because so much has been said this afternoon on these issues in such an eloquent way, with such clarity and in such a comprehensive manner. The case against the Government's proposals and for the amendments has been made comprehensively.
I find myself mystified by all three Ministers. They are all highly intelligent men. They understand the arguments and I sense that there is a certain empathy with the points


that we are trying to make. My right hon. Friend the Home Secretary and I, over a number of years, have shared platforms, and at no time more regularly than the 1997 election when it was our desire to modernise the United Kingdom. We wanted to build a new compact with our citizens and to have better government.
I submit that the Bill and the amendments do just that. I have told the House previously that on my first day in office, when faced with the responsibility of trying to chart the course for the Government's freedom of information legislation, I was faced with the choice of putting the code of practice on a legislative basis or doing the job properly, even if that meant waiting 12 months. I opted for the second course and the Cabinet backed me in that choice. I am therefore concerned when some clauses appear to be weaker than the code which I and the rest of the Cabinet had rejected. I tell my right hon. Friend the Home Secretary that it is incumbent on us to ensure that the clauses are at least as good—in my opinion they should be better—as what was provided by the code.
I reiterate that we are not talking about advice to Ministers and the confidential relationship that is essential between Ministers and civil servants. We are talking about background, factual information which, if it were available to our citizens, would empower them. I believe that if such information were made available, it would change the manner in which civil servants conducted their work. It would therefore provide better government for our country. That is a point well worth taking.
Like the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), I am mystified by the Government's continuing retreat. They have empathy with us and they understand what we are trying to do, but the difficulty is the form of words. That is a telling point, but it was answered by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) when he provided us with some words, as do the amendments.
The amendment would increase better government and rebuild confidence between the Government and the general public, our citizens. At the same time, it is essentially practical. We have the form of words and what we are asking to be done can be done because it has been done. I insisted that after we published the White Paper in December 1997 we would publish thereafter all the background papers leading up to the White Paper. All the factual information was available in printed form. I insisted that it was on the internet as well. That which we are asking for can be done and should be done.
Yesterday, I was proud to be in the House and to be a part of it as it was doing its job properly. My right hon. Friend the Home Secretary was acting in a way that Secretaries of State should act. He was listening to the arguments, appreciating them and making his own points. At the end of the day he weighed up the case and answered the debate by changing position. I hope that he will show that stature, statesmanship and maturity again today.

Mr. Richard Shepherd: I wish that a wider world could read the propositions that sometimes come before the House. I do not think they would survive a moment of the public's scrutiny. As I said yesterday, perhaps the House is the last great deferential place in the United Kingdom.
Good friends on both sides of the House have in a sense thrown aside party and said how the clause should be amended. It is not a modest little clause. Indeed, it is an

overreaching and firm assertion of who is in control, and it is not the House. No such clause could have been tabled by a Government who thought that they had to convince and win arguments in this place. It is the product of the power of the Whip.
Clause 33 states:
Information held by a government department is exempt information if it relates to the formulation of development of government policy, Ministerial communications, the provision of advice by any of the Law Officers or any request for the provision of such advice, or the operation of any Ministerial private office.
In truth, little has been left out.
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In all the years since I came to believe profoundly that one of the keys missing to the operation of our parliamentary system is equality of argument, equality of information and the ability to discuss rationally, cogently and on the basis of the facts, there has been a shadow behind Parliament: the Campaign for Freedom of Information. It has tried to advance those arguments based on the common law that sprang from this island, the understanding of arrangements in other countries—parliamentary democracies such as Canada, New Zealand, Australia, and the Republic of Ireland—and the system of law that runs like a thread through their constitutions. However, for some reason, the Executive of this country have brought forward clause 33.
All the arguments relating to the formulation and development of Government policy have been presented in the House, year after year. I can see present in the Chamber Members of Parliament who supported me in the attempt to reform section 2 of the Official Secrets Act 1911. I see individuals—I admit, most of them are facing me—who supported that attack on the Official Secrets Act because they believed that there was a public interest in Government being more open and less covert. Ministers would have to be extremely busy formulating policy not to be aware of the arguments.
The people who really know the arguments are the clerisy—the repository of wisdom, the bureaucracy itself, without beginning or end, always there. They have heard, recorded and understood the arguments each time the House has groped towards reform—once, on the initiative of no less a person than a Prime Minister, through a directive issued to Lord Croham. I sat through debates in which the right hon. Member for Chesterfield (Mr. Benn) engaged with one or two of his colleagues in discussion of the genesis and fullness of information available to members of the Cabinet—ministerial advice—on Chevaline. Those debates were a revelation to me: for the first time, I heard the House debate issues relating to policy.
The Home Secretary, knowing all those facts, knowing about Croham, after William Waldegrave's exercise in formulating a code, and understanding all the processes that go into the making of the law, produced a draft Bill. That was nearly nine months ago. The elements of that draft Bill were considered by two Committees of the House of Commons and one of the House of Lords—in short, both Chambers had a go. The issue of the formulation of Government policy was not secret or unknown; right from the start, it was a question of judgment.
Each Member of Parliament present has a thread in that process. When we ask what is happening, the clause is our answer: it tells us, "Thou shalt not know." That is the message that emanates from all parts of the Bill. Small advances are made—how generous, how grand, how nice of the Government to nourish us with the suggestion that we might be entitled to information. In the end, however, the message is, blow the dialectic, the argument, counter-argument and synthesis, for the net result is the Bill. There is only one fact: the synthesis lies in the hands of the Government. Despite all the representations on the particulars of the amendments made in Standing Committee, in Select Committee and on the Floor of the House, on 5 April we have before us a clause that washes away any prospect of debate.
The answer lies within ourselves. We know that. There is no argument about it. The Government—the Crown in Downing street, as the right hon. Member for Chesterfield calls it, and rightly so—is like the emperor: it takes a little boy to say, "But he has no clothes." It is for the House to say that the Bill has no clothes; only then will we see clearly.
Yesterday, we were treated to an extraordinary performance by the Home Secretary, but I know the devices that lay behind it—softly, softly here, concede there, do this, say that, talk about drafting difficulties, and so on. The truth is that, even with the amendments, the clause would allow only minimal access. We are still rehearsing the arguments; we are not conceding, but we know that the Government's synthesis is, "I'm listening, I'm engaged." Well, Governments in this country are always listening, but in this case only to themselves and their echo chamber.
We spend all our time running to become the Government, and we forget that government is the mechanism by which the lives of all of us and those whom we represent are ruled. Today, on 5 April 2000, after all these years and all the good fights, we face a Bill that contains the same monstrous claim—the British Government cannot succeed unless they have the security embodied in clause 33. Our amendments, our arguments are rejected. It will not do. [Interruption.] I see that the hon. Member for Linlithgow (Mr. Dalyell) is eager to speak. I shall finish soon.
The clause shows the heart of what the Government are up to. We ought to shout about it. I am using the device—amendments—used by others who have participated in the debate. The shame lies not in our efforts but in the knowledge that, despite the feelings of their own supporters, the Government have included such a clause in the Bill, without debate or dialogue.
I do not think I am betraying a secret when I tell the House that, after a sitting of the Select Committee on Public Administration, Lord Burns—a man who has been through everything that my party got up to at the Treasury and who knows a thing or two about what the Treasury gets up to—told me, "The only thing that has to be protected from exposure is rows between Ministers—that is the really sensitive area." I know that a great academic to start with, afterward a bureaucrat, might have other lines to run, but, in truth, what are those great secrets? What needs such absolute protection?
The clause, if unamended, amounts to our saying that we, as a Parliament and as a people in relationship to our Government, are less than the Canadians and the Australians—we are small.

Mr. Dalyell: Following once again the tour de force of—as I must call him in this matter—my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), I am overcome by my curiosity about one point. What will Douglas Allen—or Lord Croham as we must now call him—say, following his guidelines, if he participates in debates in another place?
I have a foreboding that we shall be discussing important matters at some ungodly hour of the morning, when we are all too tired to give them their due. I shall therefore confine myself to a single question, albeit a convoluted one. It relates to scientific evidence. Will the Home Secretary let us into the little secret of what his Home Office advisers have told him in respect of scientific evidence and whether or not it should be made available?
My experience, and it is long, of scientists is that they are absolutely desperate to get their papers published—they adore getting their papers published. I cannot believe that those who are desperate to be published in Nature or some technical magazine will have any inhibitions whatever about their evidence to the Government being published in suitable form, so that their peers can judge it.
I ask the Home Secretary this: what discussions have there been with scientists on the matter of scientific evidence about the publication of items and advice that would be covered by the clause?

Mr. David Davis: The hon. Gentleman is gracious in giving way. Does he agree that that desperation to be published is one area in which personal interest serves the public good? The process of science consists of conjecture and refutation, and much new science is not well developed and gains from the disputation that comes from publication. Such exposure would advance and assist government policy.

Mr. Dalyell: I dissent from that and give as an example the evidence on BSE presented to the Ministry of Agriculture, Fisheries and Food over the years. That generally makes the point.
I said that I would be brief, and I will stick to that. I hope that the Home Secretary will address my question at his convenience.

Dr. Lynne Jones: It is a great pleasure to participate in the debate, when so much consensus has emerged from all parts of the House. I wholeheartedly agree with my right hon. Friend the Member for Chesterfield (Mr. Benn) that the amendments would be beneficial to Ministers in carrying out the important role that they perform on behalf of the people of this country.
As for embarrassment, Ministers have been more embarrassed by information that leaks out or by delaying information than by providing it openly and up front. The issue of BSE has been raised. One understands that Ministers at the time were concerned about the effect that giving information might have on the agriculture industry, but it has been shown that by holding back that


information, far more damage was done to the industry than would have been if appropriate action had been taken much earlier.
Like other hon. Members, I am still optimistic that we will get a positive response from the Home Secretary when he replies to the debate. I know from my own contact with him that it is his natural instinct to be open with regard to information and the way in which decisions are reached. I say that not just because he gave me the name of his plumber, but because—[HON. MEMBERS: "Leaks."] It was because of a malfunction, not a leak. Other contacts that I have had with him prove that that is the way he tends to go about things.
I have been campaigning for changes in the law as it affects transsexual men and women, and I have been delighted by the openness and accessibility of Ministers not just in the Home Office, but in the Department for Education and Employment, when considering changes to Government policy in that area.
I await the report of the interdepartmental working group which the Home Secretary set up to look at the issues. I was pleased that he allowed one of the civil servants involved in that working group to meet the parliamentary forum on transsexualism. I believe that the Home Secretary would agree that civil servants in both the Departments that I mentioned have benefited from the contact that they have had with experts in that area.
I look forward to the publication of the results of the working group's deliberations. We were advised by the civil servant involved that that paper would provide options and give the facts behind the formulation of those options. I hope that it will. I raise that as an example, in support of amendment No. 91.
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I have had experience not in government, but in local government. I would not wish to stifle candid discussions between Ministers or politicians with responsibilities and their officials. Such discussions are vital, but the politicians do not always know what questions to ask. It is to our advantage that the information should be in the public domain. It probably will help to raise questions that Ministers or politicians would not otherwise think of asking.
We know that the public have a low opinion of politicians and Governments, and a genuine Freedom of Information Act would be a means of starting to build up greater public confidence in the way we govern this country.
I have also had experience of consultation papers. My hon. Friend—

Mr. Deputy Speaker: Order. The hon. Lady is making a Second Reading speech. We have passed that stage. We are dealing with the amendments.

Dr. Jones: Thank you, Mr. Deputy Speaker. I am drawing my remarks to a conclusion. I support amendment No. 91, which goes further than the factual information being made available. It is also appropriate that the public should have access to the options, unless that is ruled out by the harm test which Ministers have before them when they reach their decision. That too is in the interest of Ministers.
The Government have shown that they wish to be open—for example, by publishing summaries of the results of consultation documents. I hope that the Home Secretary will take note of the debate and respond positively to the concerns that have been expressed. Even if he cannot accept the amendments, I hope that he will present proposals of his own that show that the Government want a Freedom of Information Act of which this country can be proud.

Mr. Hawkins: This has been a debate of exceptionally high quality. I shall be brief, as so many of the arguments have already been covered, but one or two points need to be mentioned.
Alastair Campbell, the Prime Minister's press secretary, has frequently said that we will get a Freedom of Information Act over his dead body. He need have no fear; the Home Secretary is giving us neither freedom, nor information, nor any Act worth the name.
Those are not my words, but the words of a political editor of a national newspaper in his memorandum, which I mentioned earlier, to the Select Committee on Public Administration. He was dealing particularly with the issues that have been raised in the debate.
In days of yore, the Government may have wanted to dismiss the views of the political editor of The Express, but since that newspaper has been owned and run by one of Tony's cronies, the position is different. When Mr. Anthony Bevins, the extremely experienced political editor, dealing specifically with the Croham directive and its history, writes a formal memorandum to the Public Administration Committee, his words need to be taken seriously:
Open government is an attitude of mind. It is clear that frontal lobotomy would be required to change the attitude of many in Whitehall to the very idea of openness.
He continued:
New Labour's promise is not borne out by the—

Mr. Deputy Speaker: Order. Again, these are matters that could be raised on Second Reading, which of course has passed. The hon. Gentleman must speak to the amendments.

Mr. Hawkins: I understand that fully, Mr. Deputy Speaker, but the memorandum to the Select Committee on Public Administration deals specifically with clause 13. It covers the Croham directive, which many other hon. Members have mentioned in debate—

Mr. Deputy Speaker: Order. The hon. Gentleman should not read the memorandum verbatim. He can refer to it or paraphrase it, but we do not need the whole kit and caboodle.

Mr. Hawkins: I assure you, Mr. Deputy Speaker, that I have no intention of reading the whole kit and caboodle. I shall paraphrase a couple of points which the political editor of The Express made on the issue that we are considering this evening.
On the Croham directive, he said:
It is perhaps worth recalling what happened to Labour's open government commitment of October 1974. Those were the days when Labour manifestos were packed with potent, fire-in-the-belly commitment and the betrayal came with the hangover.


The then Prime Minister, now Lord Callaghan, announced that
it would be the Government's intention…to publish as much as possible of the factual and analytical material used as the background to major policy studies.
That led Douglas Allen, later Lord Croham, to issue his directive.
Having summed up how the directive failed to work, the political editor of The Express commented on the proposals in the clause and the Government amendments:
Little has changed since Sir Douglas wrote his letter in July 1977.
Twenty-two years after that pitiful directive, we now have a pitiful Bill.
I echo those words.
As various hon. Members, especially those who tabled the amendment, pointed out, in his preface to "Your Right to Know", to which many hon. Members have referred, the Prime Minister said that the Government were delivering on their promises. In the words of Mr. Anthony Bevins, the Blair betrayal has come with the hangover.

Mr. Deputy Speaker: Order. The hon. Gentleman has referred to a right hon. Member, who happens to be the Prime Minister, but that makes no difference, once by his Christian name and now by his surname. That should not be done. Has the hon. Gentleman finished?

Mr. Hawkins: No, I have not. I am grateful for your advice, Mr. Deputy Speaker.
The Bill provides for a class exemption on policy formulation. My right hon. Friend the Member for Haltemprice and Howden (Mr. Davis), my hon. Friend the Member for Ryedale (Mr. Greenway), who took the Bill through Committee, and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), who made an especially powerful and emotional speech, have drawn attention to what is wrong with the Government's actions in this respect.
We believe that the criticisms of the hon. Member for Cannock Chase (Dr. Wright) and his cross-party colleagues, including my hon. Friend the Member for Aldridge-Brownhills, were right. The right hon. Member for South Shields (Dr. Clark) said that he knew that his colleagues on the Front Bench were honourable men, but he wondered what had happened to them and how they had been got at. I can answer that question: No. 10 got at them. As my right hon. Friend the Member for Haltemprice and Howden said, Sir Humphrey has got at them.

Dr. David Clark: I want to make it clear that I never said that my right hon. or hon. Friends had been got at.

Mr. Hawkins: The right hon. Gentleman was worried, and expressed surprise that his colleagues on the Front Bench—where he used to be—had changed their stance. I apologise if I paraphrased him incorrectly.
My right hon. Friend the Member for Haltemprice and Howden and my hon. Friend the Member for Aldridge-Brownhills made the point well that there is no doubt about the Government's comprehensive change of view. They have rowed back from the previous

Government's code of practice. The Campaign for Freedom of Information made it clear that the Government have changed the proposals, which are now weaker than the previous Government's code of practice.
We support the hon. Members who tabled the amendments. They are members of different parties, and they are right to criticise the Government. The Government's proposal to row back from our code of practice and method of operation and from the White Paper is wrong. We shall support the cross-party amendments.

Mr. Patrick Hall: I want to make a brief contribution—I am sure that hon. Members will be pleased about that. The jarring contribution of the hon. Member for Surrey Heath (Mr. Hawkins) reveals that he has again misjudged the mood of the House.
I had the privilege of serving on the Standing Committee that considered the Bill and I listened carefully to the proceedings. I want to place it on the record that that was nothing like the privilege of sitting here today and listening to the high-quality contributions from all parties. I have been a Member of Parliament for almost three years, and today's debate is the best that I have heard; it showed the House at its best. All parties contributed to an important discussion.
Perhaps the debate was so good because it was informed. Those who spoke, especially the senior Members, had access to information which they considered and used to prepare and present their arguments.

Mr. Giles Radice: I agree with my hon. Friend about the quality of the debate, and last night's discussions, which were highly dramatic. However, it is interesting that, despite the quality of the debate, the Press Gallery is almost empty.

Mr. Straw: As are the Tory Benches.

Mr. Hall: Indeed. The process of opening up our democracy through access to information takes time. Perhaps the media will benefit from it. I sincerely believe that democracy is being served especially well today in this place.
I support the amendments. We are considering wide access to the background information that informs Government policy. I hope that such wide access will be provided, because it will assist strong, informed democratic participation in the life of this country, not only by Members of Parliament in the Chamber today, but by citizens of our country for all time. Information is the oxygen of democracy. As many people as possible should be involved. Sharing power and trusting the people are vital. The amendments would achieve both.
When people are informed, they will have something to say, and democracy is the stronger for it. We will all benefit from that cross-fertilisation, as we have seen on a small scale this afternoon. I should like to live to witness that on a daily basis throughout the country, not only during general election campaigns.
I was privileged last night to hear my right hon. Friend the Home Secretary show that he was prepared to listen to debate. The Bill is an historic example of proposed


legislation; this is an historic moment in the life of this Parliament. Great matters are at stake—I hope that we will all rise to occasion.

Mr. Straw: As my hon. Friend the Member for Bedford (Mr. Hall) said, this has been an interesting and stimulating debate. I am grateful to all my hon. Friends, and to my hon. Friend the Member for Birmingham, Selly Oak (Dr. Jones) in particular, for the compliments that they paid me while at the same time expressing some disagreement with the position that they anticipate that I might take, which is fair enough. I had forgotten about exchanging plumbers' telephone numbers with her, but I think that he proved satisfactory. Nothing else was exchanged, as I recall.
6.30 pm
Referring back to last night's debate, I am struck by the sense, which many of my hon. Friends may share, that the changes in respect of clause 13 which were made, and those that I announced we would make in the other place, were somehow wholly detached from this evening's discussion. It has proceeded on the assumption that the only provisions relating to factual background information that informs policy discussion are those in clauses 33 and 34. There is a class exemption in clause 33, which applies to central Government, and a pretty substantial exemption through the certificate of a qualified person around the remainder of policy advice and the workings of government in respect of clause 34. However, clause 13, which is to be further strengthened in the other place, will ensure that there is a significant route for the release of factual and background information, including that which has informed policy discussions.
I remind my right hon. and hon. Friends that in every single case in which the Minister is told by the commissioner that he is within his rights to refuse to release information—that which comes under clauses 33 and 34, for example—that Minister has a duty to consider whether the balance of public interest in releasing the information outweighs the balance of public interest in withholding it. In those circumstances and as a result of Government amendment No. 48, which is before the House in this group, the Minister will have to pay particular regard to the public interest in the release of factual and background information. That is specified in clause 13. As we heard yesterday, when the Minister decides that, in his judgment, the balance is in favour of non-disclosure, the commissioner can order disclosure. There could be an Executive override, but the threshold for that has been raised and, as we agreed yesterday, the circumstances in which such an Executive override would take place will be very limited.
As I said yesterday, any Executive override would have to proceed on the basis that the information that the Minister was seeking to withhold would at some stage become public or could be scrutinised in private. Therefore, if what the Minister was seeking to withhold concerned probity—perhaps some kind of scandalous conduct by him—he would extremely unwise—

Mr. Tony Benn: rose—

Mr. Jon Owen Jones: rose—

Mr. Straw: I shall give way to my right hon. Friend the Member for Chesterfield (Mr. Benn) and other of my

hon. Friends later. It would be an extremely unwise Minister who ever withheld such information. Only in circumstances in which that information would become public quite quickly or with the passage of a little time, would that Minister and the Government behind him—the decision would be collective—have any confidence in favour of withholding it.
I am of course aware of the 30-year rule, but under the Bill a huge amount of information currently covered by it will have to be released well in advance of that period. I also bring to the attention of the House the fact that, even under the existing regime, there are plenty of occasions on which information that is due routinely to remain—

Mr. Benn: rose—

Mr. Jones: rose—

Mr. Straw: I shall give way to my right hon. Friend the Member for Chesterfield after I have made my point.
Such information has to be brought out at a much earlier stage because of a public inquiry or for some other reason—a Public Accounts Committee inquiry, for example. I am not for a moment resiling from the suggestion that is made in the House and elsewhere that accountable government requires the maximum degree of openness and I shall respond to the points made by my hon. Friend the Member for Selly Oak about the style in which I have sought to operate as Home Secretary in a moment. I accept entirely that in not only the long run, but the short run, Ministers ought to be as open as possible. Although that can sometimes lead to a slightly uncomfortable ride on the day, it always leads to a better understanding of decisions that they have taken. If Ministers are confident about their decisions, there is a good argument for putting as much information as possible on the public record rather than not.

Mr. Benn: Those theoretical arguments are interesting, but will the Home Secretary deal with a practical example from the past? In the post-war Government, Mr. Attlee, the Prime Minister, started building the atom bomb. He did not tell the Cabinet, he did not tell Parliament and he did not tell the public. He also gave to a foreign power—the United States—permanent nuclear bases in Britain. He told Parliament that they were for training missions by American aircraft. Can my right hon. Friend address his mind to the question whether decisions as important as that would have been able to become public as a result of the Bill, which he advocates, recognising that the Prime Minister of the day, having kept it secret, would certainly want to use an Executive override to prevent that information from coming out?

Mr. Straw: I believe that neither under the Bill, nor under any other example that has been shown to me by the Campaign for Freedom of Information, nor under any system operating abroad would information relating to nuclear secrets have been made public. I know of no freedom of information regime that would have done that. All those with which I am familiar ensure that there is a ring around security matters of that kind.
I also say to my right hon. Friend that it was well known that we had a nuclear capability when the Visiting Forces Act 1952 was debated and it would have been open


to Labour as well as Conservative Members to ask questions. The whole point of the Act was to lay down the conditions under which visiting forces and their equipment could be in this country, and the only ones that we have ever had stationed on our territory have been United States forces.
My right hon. Friend was present for those debates; I was not. I make no point about that, but that is the truth of it. Notwithstanding the fact that the original decisions were made in secret, the House had an opportunity to lay down conditions for the use of such nuclear weapons here by the United States and the circumstances in which the visiting forces could be in this country.

Mr. Greenway: rose—

Mr. Straw: I shall give way, but then I must get on.

Mr. Greenway: I am most grateful to the Home Secretary for giving way. The examples of factual information that we have discussed all appear to relate to areas covered by a specific exemption. There is an exemption for defence and an exemption for national security; I suspect that that would have answered the point made by the right hon. Member for Chesterfield (Mr. Benn). The Home Secretary, in defence of his argument, has referred only to information relating to public inquiries. That is also exempt. Can he give a clear example of information that a Minister of the Crown would want to keep secret that is not caught by one of the exemptions?

Mr. Straw: If the hon. Gentleman is asking whether I can think of a circumstance in which the exemption could be used, I can think of a series of hypothetical circumstances in which one might be used, some of which I spelled out yesterday. With respect to you, Mr. Deputy Speaker, I would rather stick to the core area that we are discussing today. I do not happen to believe that a Minister would seek to use an exemption certificate to prevent the release of factual and background information when that was ordered by the commissioner.

Mr. David Heath: rose—

Mr. Straw: If I may, I shall make progress. Time is getting on and there are many other debates to come. I will take a few interventions later.
That is my view. The point is that the override certificate would be used in very limited circumstances and we have raised the threshold of decision making so that that would also apply.
What we debated last night—and I think that we eventually secured considerable agreement on the Labour Benches—has a direct bearing on the question of whether statistical and background information should be made available to members of the public, and to the House.
I want to place on record what the Government have done to secure greater openness in government than we ever saw under the last Administration. One of the White Papers of which I am proudest, not because I was the sponsoring Minister in government but because I took the lead in opposition, is Cm 4412, entitled "Building Trust

in Statistics". In our manifesto, we committed ourselves to placing the national statistics service on a more independent basis. The Liberal Democrats shared that commitment, and I am grateful for the support that they gave both before the election—in the joint statement that we issued—and subsequently.
The possession of comprehensive, accurate, reliable data that is beyond reproach, and which generates no suspicion that Ministers or anyone else have interfered, is fundamental to the operation of the politics of integrity. Without that, if there is any argument about whether the data are accurate, there can be no proper democratic debate, and Ministers certainly cannot be held properly accountable. The argument is about the measure of accountability, rather than what has actually been done.

Mr. Brian White: Will my right hon. Friend give way?

Mr. Straw: I must ask my hon. Friend to resume his seat until I have finished this point.
There were worries, to say the least, about the last Government's record on statistics. Some series of statistics were satisfactory, but others were not. We famously remember that, as the unemployment figures rose, the statistical series was reworked, reworked and reworked again. I cannot remember whether there were 22 tax rises or 22 changes in statistics, or both. Perhaps there were 30. In any event, a huge number was involved. It undermined faith in the democratic process, and Conservative Members now recognise the great error that was made.
We introduced the White Paper in order better to underpin the independence of the national statistics service, to establish a clear framework for national statistics, to appoint an independent statistics commission to oversee the operation of the service, and to appoint a high-grade new director. In many Departments, including mine, individual Ministers have already achieved the standard being set, or even surpassed it.
We are not talking just about the law, important though that is; we are talking about practice. When I became Home Secretary, I did not have to wait for three years to put into practice certain principles that I considered to be key to accountability and openness; I ensured that the operation of the research and statistics department was at arm's length, and that the Royal Statistical Society—of which I have the honour to be an honorary Fellow—could advise us about the operation of statistics of integrity.
Let me now reply to the point raised by my hon. Friend the Member for Linlithgow (Mr. Dalyell). A huge amount of research is done in the Home Office. We have established protocols both for the publication of research contracted into the Home Office, and for the publication of research carried out by in-house researchers. The fact that the research is being conducted is published in advance—Ministers cannot interfere with that—and when it is ready for publication, after peer review rather than ministerial say-so, it is published. I believe that similar protocols are followed elsewhere.

Mr. Jon Owen Jones: Everyone, at least on this side of the House, accepts that the last Government were reluctant to allow the public access to statistical information. But why has it taken more than two years—


as we heard yesterday—to reveal the costs of the MI6 and MI5 buildings? That concealment of information took place under the current regime, although not to the extent to which it took place under the last.

Mr. Straw: Let me say, with respect—I make the same point to my right hon. Friend the Member for Chesterfield—that, although there was not a particularly good argument for not revealing the cost of the Security Service and Secret Intelligence Service buildings, in the end the cost was revealed. I think that it should have been revealed much earlier. I do not happen to believe for a second that anything was disclosed other than what is, I am afraid, a universal truth when it comes to public buildings: the work always takes longer and costs a great deal more than anyone originally anticipated. There is no secret about that.
As for the way in which the Security Service and the SIS—MI6—operate, I think it is a universal truth—I now use the phrase in a different context—about freedom-of-information regimes that there must be a ring of secrecy around them. At the same time, however, they must be made accountable in other ways, not least—I say this to my hon. Friend the Member for Thurrock (Mr. Mackinlay), who usually sits below the Gangway—through the Intelligence and Security Committee established by the House.

Mr. White: rose—

Mr. David Heath: rose—

Mr. Straw: I will take two more interventions, but after that I must make progress.

Mr. David Heath: The Home Secretary is explaining his current practice, and I do not hesitate to say that he, within his Department, is exercising very good practice in many ways in regard to the release of information. However, we are not discussing what happens at his behest or in his Department, or in any other Department, or what might happen in a future Government. We are talking about the right of the citizen to receive factual information. Nothing that the right hon. Gentleman has said so far changes the fact that he is proposing a process of attrition for the purposes of a member of the public who wants access to information that a bureaucracy is loth to share. The Executive override is the end of that process, not the beginning. What we want is a right from the beginning.

Mr. Straw: I accept—indeed, the hon. Gentleman anticipated my next remarks—that good faith on the part of government, and evidence of that good faith in the form of practice over the last three years, do not constitute change sufficient to meet the concerns of the House, but they are a necessary part of that change.
I mentioned the practice that I have followed, the practice that many of my predecessors have followed and the practice of the Government as a whole in the context of the changes introduced in what is a very important White Paper, although it has been inevitably much ignored by newspapers, because it aroused no controversy. I wanted to make it clear that we approached the issue—a very difficult issue, when it comes to the detail—in good faith.
It is not that, over the past three years, I have sought to withhold information from the House or from members of the public. In one area after another, I have sought to ensure that the House is properly informed, and that when Members ask questions we always go the extra mile and provide additional information if we can. That contrasts with the practice of the last Government, who adopted a liberal approach to questions and were as unhelpful as possible.
For instance, we have published huge volumes of directives and instruction manuals for the immigration and nationality directorate, and have put them on the internet. I have put the prisons inspectorate on a properly independent basis, with a protocol to ensure that the scandal that occurred under the last Administration will never occur again. When the right hon. Member for Maidstone and The Weald (Miss Widdecombe) was in charge, independent reports by the inspectorate stacked up month after month. A dozen of them a year old were on my desk when I came to the Home Office.
Such improvements have been made in many areas of Government, both because we happen to think it right and because it is sensible, from a Minister's point of view, for there to be an identity of interest between the need for accountability and the reputation of Government. Both require the greatest possible degree of openness.

Mr. Radice: No one doubts my right hon. Friend's record, or the improvement on the previous Government. However, on Second Reading, I asked him:
Is not it possible to separate policy advice from the information behind that policy advice?—[Official Report, 7 December 1999; Vol. 340, c. 723.]
My right hon. Friend said that he had not yet found a formula that safely did as I asked, but that he was happy to continue the search for one. My question is simply whether he has found such a formula yet?

Mr. Straw: I shall answer my right hon. Friend directly, as that point is at the heart of the debate. We have found part of an answer—a safe one in which there is a proper balance in the conflict between the need of the Government to make their decisions in confidence and the understandable need of the public and the House to ensure availability of the maximum amount of factual information. That is the point of clause 13.
As I shall explain to the House in a moment, the Government face a genuine difficulty in putting together a form of words that separates what I think people are talking about—basic statistical data, which are already published; although there are not much such data, there are some—from the analysis of that data and policy advice, which people accept, for reasons that everyone understands, should not be published immediately. The position that we have reached so far is the provisions of clause 13, which we propose to amend with amendment No. 48 and the other amendments that the House accepted yesterday.
I tell my hon. Friend the Member for Cannock Chase (Dr. Wright) and hon. Members who have supported him on amendment No. 10 that there are really quite serious difficulties about the amendment's wording. He described the amendment as the simplest and the crispest of the amendments—some of which are alternative amendments—in this group. The problem with


amendment No. 10 is that it seeks to ensure that the factual information behind policy advice is made available. It provides no class exemption, and it does not even provide a harm test, which is typically provided in other systems. Nor does it provide a balancing arrangement between the public interest in disclosure of that factual background information and the public interest against its disclosure.
The difficulty with the amendment is essentially a linguistic one, about what is meant by factual information. The word fact encompasses a huge sphere of human activity. "Words and Phrases Legally Defined" states:
Everything in the cosmos is a fact or a phenomenon.
Occasionally, there are arguments—perhaps I should say happy and comradely discussions—in Cabinet Committees and between Ministers. Although those arguments themselves will be an expression of opinion, it will be a fact that those arguments occurred.

Mr. Fisher: indicated dissent.

Mr. Straw: I do not say that to make a casuistical point. I shall give my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher) and the House a more specific example.
As is well known, discussions are being held between departmental spending Ministers and the Treasury on bids for the next spending round, which will be announced in July. A huge amount of the information that has been submitted, on paper, to PSX—which is the Cabinet Committee concerned—is factual information on the costs of the various bids submitted by Ministers or on the analysis of that information. The conclusion of those Cabinet discussions will be made public very soon, in July 2000, in the statement of my right hon. Friend the Chancellor of the Exchequer and in the public spending White Paper that will be published with that statement.
As my hon. Friend the Member for Stoke-on-Trent, Central has been a Minister, he will know that there is no way in which a Minister can say that the type of information in the bid letters that I have submitted, or in the briefing that is in my folder for meetings with colleagues, is opinion. It is not opinion: it is raw fact and raw data, and, at best, analysis of them. If we were to accept amendment No. 10, virtually everything that is in my brief for PSX and in those of my colleagues—although it goes to the heart of collective decision making—would be available. There is no question but that we would have to release it. I suggest that that would very seriously affect the collective nature of the Government and our ability—on behalf of our constituents, and to follow our manifesto—to make decisions.
In this debate, every hon. Member has accepted that collective decision making needs to be protected and has to take place in confidence. Everyone has also accepted—as do I—that as much factual and background information as possible should be made available. I have spelt out to the House what we have already done, what we have included in clause 13, how we are strengthening clause 13, and how I hope that we can continue the discussions that I mentioned in answer to my right hon. Friend the Member for North Durham (Mr. Radice).
It would be idle for me or for any other hon. Member to pretend that it is easy to secure a balance. I say with respect to my hon. Friend the Member for Cannock Chase that amendment No. 10 does not achieve such a balance at all.

Fiona Mactaggart: I accept the Secretary of State's points, but he has forgotten about clause 34—which contains a harm test that specifically deals with those points. If factual information is not covered by clause 33, it would not be covered if amendment No. 10 were passed. However, that factual information would also be considered under the provisions of clause 34, which would exempt information that is likely to prejudice maintenance of the convention on Ministers' collective responsibility. Therefore, because of the provisions of clause 34, I think that his fears are unfounded.

Mr. Straw: I have listened with interest to my hon. Friend's comments, but, with respect to her, I do not think that it would be exempt. That was also not the sense of the amendment that I got from my hon. Friend the Member for Cannock Chase when he moved it. A note that I have just been handed also says that amendment No. 10 would exclude clause 34—which was the point that I was going to make, from recollection, regardless.

Dr. Tony Wright: The Home Secretary's invitation to the House to consider the nature of a fact was an interesting moment. However, is he really suggesting that they know what a fact is in Ireland and in New Zealand, and that they have discovered what a fact is in Scotland, but that we in the United Kingdom have not quite managed to work out what a fact is at all?

Mr. Straw: I cannot speak for New Zealand, for Ireland or, indeed, for Scotland. Nevertheless, in Scotland—as I recall; I am open to correction—the Scottish Executive has published a White Paper. It is easy to say that such matters are easily defined, but much more difficult to define them. That is the difficulty, and that is at the heart of the issue. We are arguing about what is a fact. If my hon. Friend applies himself not only to the Oxford English Dictionary, but to "Words and Phrases Legally Defined", he will discover that there is no complete separation between a fact and an opinion. It is—in fact—a bit like Venn diagrams, in which there is certainly separation at the extremes, but a large area in the middle where things can be both fact and opinion. Additionally, a fact can be made out of the existence of an opinion.

Mr. David Davis: My point follows that of the hon. Member for Cannock Chase (Dr. Wright). The Home Secretary has almost gone into a theological argument in describing the processes of government, but the processes that he has described are common to Canada, New Zealand, Australia and Ireland. They are almost identical structures of government. Why, when those countries can solve the problem without damage, cannot the Home Secretary do so?

7 pm

Mr. Straw: I am interested to hear a member of the previous Government professing expertise on freedom of


information, when the campaign guide on which he fought the election said:
The only group in Britain who are seriously interested in a Freedom of Information Act are inquisitive left-wing busy bodies.
I shall listen to advice from Labour Members, but, with the exception of the hon. Member for Aldridge-Brownhills (Mr. Shepherd), I take with a pinch of salt the Conservatives' late conversion on the issue.
The answer to the right hon. Gentleman's point is that it is for each Parliament to make its own decisions. We have to debate the matter ourselves. I cannot answer for the debates in Canada or New Zealand, but I am sure that there was a proper debate. The dividing line between fact and opinion is not a theological issue; it is linguistic, because law is based on language, which is of critical importance. Such debates took place in those other countries, but it is for us to decide for ourselves on the basis of our culture and practices and, in particular, the way in which our courts have interpreted words such as "facts" and "opinions".
Bringing the debate to a close, I regret, for the reasons that I have explained, that we cannot accept amendment No. 10 and the others that my hon. Friend the Member for Cannock Chase spoke to, not because we disagree with the principle that he put forward, but because we disagree with the practical effect of the amendments. I sought to explain yesterday and today that we want the greatest possible openness in the operation of government. The proof of that is not in the crystal, it is in the book—in the way in which we have operated and will continue to operate. To answer the point made by the hon. Member for Somerton and Frome (Mr. Heath), I accept that that method of operation should be enshrined in law as far as possible.
During our debates we have strengthened the arrangements for ensuring that as much factual information as possible is brought out. I explained that yesterday in relation to the changes to clause 13. The House will be aware that Government amendment No. 48 affects clause 13 and will ensure that the Minister and commissioner will have to have particular regard to the public interest in making factual information available. I have also told my right hon. Friend the Member for North Durham that the search for a better form of words will be difficult, but it will continue and we shall not close the door on it.

Mr. Radice: Clause 13(6) refers to
communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking.
Surely my right hon. Friend might look at that.

Mr. Straw: Indeed we shall continue to look at that.
This has been a lengthy but good debate. In the light of my explanations, I hope that the House will accept the Government amendments and that my hon. Friend the Member for Cannock Chase may feel able to withdraw his amendment.

Dr. Tony Wright: I have listened carefully to the Home Secretary. A couple of centuries ago, that shrewd observer of public affairs, Mr. de Tocqueville, said that an unreformed regime was most at risk when it started to reform. I understand that that is written in bright lights in every Whips office.
The Home Secretary is right to point to the seamless nature of the Bill. Each item is intricately connected with all the others. The issue relates to new clause 6, which we will consider later. We listened with care to what the Home Secretary said on the issue last night, but we were not yet persuaded that it was desirable to allow the exercise of a veto. If we allow a veto, it must come with certain conditions: first, it must be a proper Cabinet veto; secondly, it should not be an across-the-board veto, but must concentrate on certain key areas; and, thirdly, it should not apply to local authorities. Based on what my colleagues were saying last night, I think that that is the position.
I speak with some sadness, because I am a supporter of the Government. I am proud of what they are doing. Indeed, I confess to being a serial loyalist. The problem is that there comes a moment when we have to decide whether we can accept the formula that the Government are offering on issues that affect the workings of our democracy and the rights of our citizens. There are not too many such moments during a Parliament, but this is one on any test.
The question is simple. Individual Members of Parliament have to make a decision—never mind the party line. I celebrate the fact that much of the Bill has cross-party agreement. We have to decide individually.

Mr. Straw: I understand my hon. Friend's feelings, but we are considering amendment No. 10, which would drive a coach and horses through any idea of confidentiality of collective decision making. Does he accept that, under his amendment, all the factual information on public spending going before the Cabinet Committee would have to be made public? That is plainly the effect of the amendment.

Dr. Wright: I shall refer in a second to the amendments, but I should like to continue on the fundamental point. We must ask whether we are prepared to accept clauses 33 and 34. This may seem an abstruse way of putting it to those who have not followed our debates closely, but they are the clauses that say, "Thou shalt not have access even to the factual basis on which Government policy is made." We must make a clear choice on whether that is an acceptable formulation.
I am still not sure whether I am allowed to call someone on the other side of the House an hon. Friend, but my hon. Friend and parliamentary neighbour, the Member for Aldridge-Brownhills (Mr. Shepherd), said extraordinarily eloquently that the answer lies within ourselves. It is as simple as that. There is no great wisdom to be derived from other sources. We simply have to work out whether we think that the formulation given to us in clauses 33 and 34 is how we would like to deal with the issue.
I hope that my right hon. Friend the Member for Chesterfield (Mr. Benn) will not mind me saying that, during the debate, he leant over to me and said that he could not remember an occasion when Parliament had been so roused collectively by an issue across party lines. He said how good it was for Parliament that this was happening. The Home Secretary illuminated the choice in his reply to the debate, as did the Public Administration Committee report on the draft Bill, saying that there was a fundamental choice in approach between open government and freedom of information. Open government happens when a Government decide to


behave in a more open way. It is a gift, or a grant, from a Government. Freedom of information is achieved when rights are claimed by citizens, and bestowed on them. That is the choice before us in clauses 33 and 34.
Amendment No. 7 would remove what I and other hon. Members consider to be an unacceptable way of dealing with this matter. Other amendments that have been tabled are far more robust, but the minimalist amendment No. 10—on which I hope we will vote later—would simply take factual information out of the list of exemptions. That amendment represents the most minimal approach to making the distinction that many hon. Members believe is necessary.
For the moment, our attention is turned to amendment No. 7, which says in effect that the proposals are unacceptable and that we should proceed in a more acceptable way. I commend it to the House.

Question put, That the amendment be made:—

The House divided: Ayes 202, Noes 311.

Division No. 144]
[7.11 pm


AYES


Ainsworth, Peter (E Surrey)
Cousins, Jim


Allan, Richard
Cran, James


Amess, David
Dalyell, Tam


Arbuthnot, Rt Hon James
Davies, Quentin (Grantham)


Ashdown, Rt Hon Paddy
Davis, Rt Hon David (Haltemprice)


Atkinson, Peter (Hexham)
Day, Stephen


Baldry, Tony
Donaldson, Jeffrey


Ballard, Jackie
Dorrell, Rt Hon Stephen


Beggs, Roy
Duncan, Alan


Bell, Martin (Tatton)
Duncan Smith, Iain



Dunwoody, Mrs Gwyneth


Benn, Rt Hon Tony (Chesterfield)
Evans, Nigel


Bercow, John
Fabricant, Michael


Beresford, Sir Paul
Fallon, Michael


Blunt, Crispin
Fearn, Ronnie


Body, Sir Richard
Fisher, Mark


Boswell, Tim
Flight, Howard


Bottomley, Peter (Worthing W)
Forth, Rt Hon Eric


Bottomley, Rt Hon Mrs Virginia
Foster, Rt Hon Derek


Brady, Graham
Foster, Don (Bath)


Brake, Tom
Fox, Dr Liam


Brand, Dr Peter
Fraser, Christopher


Brazier, Julian
Gale, Roger


Breed, Colin
Garnier, Edward


Brooke, Rt Hon Peter
George, Andrew (St Ives)


Browning, Mrs Angela
Gerrard, Neil



Gibb, Nick


Bruce, Ian (S Dorset)
Gillan, Mrs Cheryl


Burnett, John
Gorman, Mrs Teresa


Burns, Simon
Graham, Thomas


Burstow, Paul
Gray, James


Butterfill, John
Green, Damian


Cable, Dr Vincent
Greenway, John


Campbell, Rt Hon Menzies (NE Fife)
Grieve, Dominic



Gummer, Rt Hon John


Chope, Christopher
Hague, Rt Hon William


Clappison, James
Hall, Patrick (Bedford)


Clark, Rt Hon Dr David (S Shields)
Hamilton, Rt Hon Sir Archie


Clifton-Brown, Geoffrey
Hammond, Philip


Clwyd, Ann
Harvey, Nick


Cohen, Harry
Hawkins, Nick



Hayes, John


Collins, Tim
Heald, Oliver


Cook, Frank (Stockton N)
Heath, David (Somerton & Frome)


Corbett, Robin
Hinchliffe, David


Corbyn, Jeremy
Hogg, Rt Hon Douglas


Cotter, Brian
Hopkins, Kelvin





Horam, John
Prentice, Gordon (Pendle)


Howard, Rt Hon Michael
Randall, John


Hughes, Simon (Southwark N)
Redwood, Rt Hon John


Hunter, Andrew
Rendel, David


Jenkin, Bernard
Robathan, Andrew


Johnson Smith, Rt Hon Sir Geoffrey
Robertson, Laurence



Roe, Mrs Marion (Broxbourne)


Jones, Jon Owen (Cardiff C)
Rowe, Andrew (Faversham)


Jones, Dr Lynne (Selly Oak)
Ruffley, David


Keetch, Paul
Russell, Bob (Colchester)


Kennedy, Rt Hon Charles (Ross Skye & Inverness W)
St Aubyn, Nick



Sayeed, Jonathan


Key, Robert
Shephard, Rt Hon Mrs Gillian


King, Rt Hon Tom (Bridgwater)
Shepherd, Richard


Kirkbride, Miss Julie
Simpson, Alan (Nottingham S)


Kirkwood, Archy
Simpson, Keith (Mid-Norfolk)


Laing, Mrs Eleanor
Skinner, Dennis


Lansley, Andrew
Smith, Llew (Blaenau Gwent)


Leigh, Edward
Smith, Sir Robert (W Ab'd'ns)


Letwin, Oliver
Soames, Nicholas


Lidington, David
Spelman, Mrs Caroline


Lloyd, Rt Hon Sir Peter (Fareham)
Spring, Richard


Llwyd, Elfyn
Stanley, Rt Hon Sir John


Loughton, Tim
Steen, Anthony


Love, Andrew
Streeter, Gary


Luff, Peter
Stunell, Andrew


Lyell, Rt Hon Sir Nicholas
Swayne, Desmond


McDonnell, John
Syms, Robert


MacGregor, Rt Hon John
Tapsell, Sir Peter


McIntosh, Miss Anne
Taylor, Ian (Esher & Walton)


MacKay, Rt Hon Andrew
Taylor, John M (Solihull)


Mackinlay, Andrew
Taylor, Matthew (Truro)


Maclean, Rt Hon David
Thompson, William


Maclennan, Rt Hon Robert
Tonge, Dr Jenny


McLoughlin, Patrick
Tredinnick, David


Madel, Sir David
Trend, Michael


Mahon, Mrs Alice
Tyler, Paul


Malins, Humfrey
Viggers, Peter


Maples, John
Walter, Robert


Marshall, Jim (Leicester S)
Waterson, Nigel


Marshall-Andrews, Robert
Webb, Steve


Mates, Michael
Wells, Bowen


Maude, Rt Hon Francis
Whitney, Sir Raymond


May, Mrs Theresa
Whittingdale, John


Michie, Bill (Shef'ld Heeley)
Willetts, David


Michie, Mrs Ray (Argyll & Bute)
Williams, Mrs Betty (Conwy)


Moore, Michael
Willis, Phil


Morgan, Ms Julie (Cardiff N)
Winnick, David


Moss, Malcolm
Winterton, Mrs Ann (Congleton)


Nicholls, Patrick
Winterton, Nicholas (Macclesfield)


Norman, Archie
Wood, Mike


Oaten, Mark
Wright, Dr Tony (Cannock)


O'Brien, Stephen (Eddisbury)
Wyatt, Derek


Öpik, Lembit
Yeo, Tim


Ottaway, Richard
Young, Rt Hon Sir George


Page, Richard



Paice, James
Tellers for the Ayes:


Pickles, Eric
Mr. Adrian Sanders and


Portillo, Rt Hon Michael
Mr. Ronnie Campbell.




NOES


Ainger, Nick
Begg, Miss Anne


Ainsworth, Robert (Cov'try NE)
Bell, Stuart (Middlesbrough)


Alexander, Douglas
Benn, Hilary (Leeds C)


Anderson, Donald (Swansea E)
Bennett, Andrew F


Anderson, Janet (Rossendale)
Benton, Joe


Armstrong, Rt Hon Ms Hilary
Bermingham, Gerald


Ashton, Joe
Berry, Roger


Atherton, Ms Candy
Best, Harold


Atkins, Charlotte
Betts, Clive


Austin, John
Blackman, Liz


Barnes, Harry
Blears, Ms Hazel


Barron, Kevin
Blizzard, Bob


Bayley, Hugh
Blunkett, Rt Hon David


Beard, Nigel
Boateng, Rt Hon Paul


Beckett, Rt Hon Mrs Margaret
Bradley, Keith (Withington)






Bradley, Peter (The Wrekin)
Gardiner, Barry


Bradshaw, Ben
George, Bruce (Walsall S)


Brinton, Mrs Helen
Gilroy, Mrs Linda


Brown, Rt Hon Nick (Newcastle E)
Godman, Dr Norman A


Brown, Russell (Dumfries)
Godsiff, Roger


Browne, Desmond
Goggins, Paul


Buck, Ms Karen
Golding, Mrs Llin


Burden, Richard
Gordon, Mrs Eileen



Griffiths, Jane (Reading E)


Burgon, Colin
Griffiths, Nigel (Edinburgh S)


Butler, Mrs Christine
Griffiths, Win (Bridgend)


Byers, Rt Hon Stephen
Grocott, Bruce


Caborn, Rt Hon Richard
Grogan, John


Campbell, Alan (Tynemouth)
Gunnell, John


Campbell, Mrs Anne (C'bridge)
Hain, Peter


Campbell-Savours, Dale
Hall, Mike (Weaver Vale)


Cann, Jamie
Hamilton, Fabian (Leeds NE)


Caplin, Ivor
Hanson, David


Casale, Roger
Heal, Mrs Sylvia


Caton, Martin
Healey, John


Cawsey, Ian
Henderson, Doug (Newcastle N)


Chapman, Ben (Wirral S)
Hepburn, Stephen


Chaytor, David
Heppell, John


Church, Ms Judith
Hesford, Stephen


Clapham, Michael
Hill, Keith



Hodge, Ms Margaret


Clark, Dr Lynda (Edinburgh Pentlands)
Hoey, Kate



Hood, Jimmy


Clark, Paul (Gillingham)
Hoon, Rt Hon Geoffrey


Clarke, Charles (Norwich S)
Hope, Phil


Clarke, Eric (Midlothian)
Howarth, Alan (Newport E)


Clarke, Tony (Northampton S)
Howarth, George (Knowsley N)


Clelland, David
Howells, Dr Kim


Coaker, Vernon
Hoyle, Lindsay


Coffey, Ms Ann
Hughes, Kevin (Doncaster N)


Coleman, Iain
Humble, Mrs Joan


Colman, Tony
Hurst, Alan


Cooper, Yvette
Hutton, John


Corston, Jean
Iddon, Dr Brian


Cranston, Ross
Illsley, Eric


Cryer, John (Hornchurch)
Ingram, Rt Hon Adam


Cummings, John
Jackson, Ms Glenda (Hampstead)



Jackson, Helen (Hillsborough)


Cunningham, Rt Hon Dr Jack (Copeland)
Jamieson, David



Jenkins, Brian


Cunningham, Jim (Cov'try S)
Johnson, Alan (Hull W & Hessle)


Darling, Rt Hon Alistair
Johnson, Miss Melanie (Welwyn Hatfield)


Darvill, Keith



Davey, Valerie (Bristol W)
Jones, Rt Hon Barry (Alyn)


Davidson, Ian
Jones, Helen (Warrington N)


Davies, Rt Hon Denzil (Llanelli)
Jones, Martyn (Clwyd S)


Davies, Geraint (Croydon C)
Jowell, Rt Hon Ms Tessa


Dawson, Hilton
Kaufman, Rt Hon Gerald


Dean, Mrs Janet
Keeble, Ms Sally


Denham, John
Keen, Alan (Feltham & Heston)


Dismore, Andrew
Kemp, Fraser


Dobbin, Jim
Kennedy, Jane (Wavertree)


Donohoe, Brian H
Khabra, Piara S


Doran, Frank
Kidney, David


Dowd, Jim
King, Andy (Rugby & Kenilworth)


Eagle, Angela (Wallasey)
King, Ms Oona (Bethnal Green)


Eagle, Maria (L'pool Garston)
Ladyman, Dr Stephen


Edwards, Huw
Lawrence, Mrs Jackie


Ellman, Mrs Louise
Laxton, Bob


Ennis, Jeff
Lepper, David


Field, Rt Hon Frank
Leslie, Christopher



Levitt, Tom


Fitzpatrick, Jim
Lewis, Ivan (Bury S)


Fitzsimons, Lorna
Lewis, Terry (Worsley)


Flint, Caroline
Liddell, Rt Hon Mrs Helen


Follett, Barbara
Linton, Martin


Foster, Michael Jabez (Hastings)
Lock, David


Foster, Michael J (Worcester)
McAvoy, Thomas


Foulkes, George
McCabe, Steve


Galloway, George
McDonagh, Siobhain


Gapes, Mike
Macdonald, Calum





McFall, John
Sarwar, Mohammad


McIsaac, Shona
Savidge, Malcolm


McKenna, Mrs Rosemary
Sawford, Phil


McNulty, Tony
Sedgemore, Brian


MacShane, Denis
Shaw, Jonathan


Mactaggart, Fiona
Sheerman, Barry


McWalter, Tony
Shipley, Ms Debra


McWilliam, John
Short, Rt Hon Clare


Mallaber, Judy
Singh, Marsha


Mandelson, Rt Hon Peter
Smith, Rt Hon Andrew (Oxford E)


Marsden, Paul (Shrewsbury)
Smith, Angela (Basildon)


Marshall, David (Shettleston)
Smith, Miss Geraldine (Morecambe & Lunesdale)


Martlew, Eric



Maxton, John
Smith, Jacqui (Redditch)


Meacher, Rt Hon Michael
Smith, John (Glamorgan)


Merron, Gillian
Soley, Clive


Milburn, Rt Hon Alan
Southworth, Ms Helen


Miller, Andrew
Spellar, John


Moffatt, Laura
Squire, Ms Rachel


Moonie, Dr Lewis
Starkey, Dr Phyllis


Moran, Ms Margaret
Steinberg, Gerry


Morley, Elliot
Stevenson, George


Morris, Rt Hon Ms Estelle (B'ham Yardley)
Stewart, David (Inverness E)



Stewart, Ian (Eccles)


Mountford, Kali
Stinchcombe, Paul


Mudie, George
Stoate, Dr Howard


Mullin, Chris
Strang, Rt Hon Dr Gavin


Murphy, Denis (Wansbeck)
Straw, Rt Hon Jack


Murphy, Jim (Eastwood)
Stringer, Graham


Murphy, Rt Hon Paul (Torfaen)
Stuart, Ms Gisela


Naysmith, Dr Doug
Sutcliffe, Gerry


Norris, Dan
Taylor, Rt Hon Mrs Ann (Dewsbury)


O'Brien, Bill (Normanton)



O'Brien, Mike (N Warks)
Taylor, Ms Dari (Stockton S)


Olner, Bill
Taylor, David (NW Leics)


O'Neill, Martin
Temple-Morris, Peter


Organ, Mrs Diana
Thomas, Gareth (Clwyd W)


Osborne, Ms Sandra
Thomas, Gareth R (Harrow W)


Palmer, Dr Nick
Timms, Stephen


Pearson, Ian
Tipping, Paddy


Pendry, Tom
Todd, Mark


Perham, Ms Linda
Touhig, Don


Pickthall, Colin
Trickett, Jon


Pike, Peter L
Truswell, Paul


Plaskitt, James
Turner, Dennis (Wolverh'ton SE)


Pollard, Kerry
Turner, Dr George (NW Norfolk)


Pond, Chris
Turner, Neil (Wigan)


Pound, Stephen
Twigg, Derek (Halton)


Powell, Sir Raymond
Twigg, Stephen (Enfield)


Prentice, Ms Bridget (Lewisham E)
Tynan, Bill


Prescott, Rt Hon John
Vaz, Keith


Primarolo, Dawn
Walley, Ms Joan


Prosser, Gwyn
Ward, Ms Claire


Purchase, Ken
Wareing, Robert N


Quinn, Lawrie
Watts, David


Rammell, Bill
White, Brian


Raynsford, Nick
Whitehead, Dr Alan


Reed, Andrew (Loughborough)
Wicks, Malcolm


Reid, Rt Hon Dr John (Hamilton N)
Williams, Rt Hon Alan (Swansea W)


Robinson, Geoffrey (Cov'try NW)



Roche, Mrs Barbara
Williams, Alan W (E Carmarthen)


Rogers, Allan
Wills, Michael


Rooker, Rt Hon Jeff
Wilson, Brian


Rooney, Terry
Winterton, Ms Rosie (Doncaster C)


Ross, Ernie (Dundee W)
Woodward, Shaun


Rowlands, Ted
Woolas, Phil


Roy, Frank
Worthington, Tony


Ruane, Chris
Wright, Anthony D (Gt Yarmouth)


Ruddock, Joan



Russell, Ms Christine (Chester)
Tellers for the Noes:


Ryan, Ms Joan
Mr. Greg Pope and


Salter, Martin
Mrs. Anne McGuire.

Question accordingly negatived.

Amendments made: No. 48, in page 8, line 10, leave out—
'also have regard to the desirability of'
and insert—
'in particular have regard to the public interest in'.

No. 49, in page 8, line 13, leave out from beginning to "within" and insert—
'A public authority must comply with this section'.—[Mr. Mike Hall.]

Clause 14

FEES FOR DISCRETIONARY DISCLOSURE

Amendments made: No. 50, in page 8, line 18, leave out—
'in pursuance of a decision'.

No. 51, in page 8, line 20, leave out—
'in pursuance of a decision'.—[Mr. Mike Hall.]

Clause 15

REFUSAL OF REQUEST

The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I beg to move amendment No. 52, in page 8, line 35, leave out from "that" to "or" in line 36 and insert—
'by virtue of any provision of Part II the duty to confirm or deny does not arise'.

Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss Government amendments Nos. 55 to 60, 62, 67, 85 and 86.

Mr. Lock: I can say fairly confidently that I will not detain the House as long on this group of amendments as it was detained on the previous group. They are technical amendments—[Interruption.]

Mr. Deputy Speaker: Order. I am sorry to interrupt the hon. Gentleman. Could we please have more quiet? This is a debate and the Minister needs to be heard.

Mr. Lock: The amendments are technical and are tabled in response to matters raised in Committee. I draw the attention of the House to amendments Nos. 55 to 59, which were tabled in response to a concern raised by the hon. Member for Somerton and Frome (Mr. Heath), who inquired whether information made publicly available in London was "reasonably accessible" if the person seeking it resided in Newcastle, for example. The amendments make the information available only if it is reasonably accessible to the individual applicant who seeks it. I am grateful to the hon. Gentleman for raising that matter and the background to it, which is dealt with in amendment No. 60. As the amendments are technical and, I hope, reasonably uncontroversial, I will leave it at that. I will be more than happy to respond if hon. Members want clarification of the purpose behind any of the
amendments.

Mr. David Heath: I rise only to thank the Minister for listening to what I said in Committee and incorporating it in the Bill. I am most grateful.

Mr. Hawkins: I can be equally brief. We welcome the fact that the Government have responded to matters raised

in Committee. The hon. Member for Somerton and Frome (Mr. Heath) made some good points. My hon. Friend the Member for Ryedale (Mr. Greenway), who took the Bill through the Committee for the Opposition, certainly supported the hon. Gentleman in his concerns and we are delighted that the Government have responded with the amendments.

Amendment agreed to.

Amendments made: No. 53, in page 9, line 1, leave out from "which" to end of line 4 and insert—

'(a) decides under section 13(3) that, in all the circumstances of the case, the public interest in disclosing the fact that the authority does or does not hold information of the description specified in a request for information does not outweigh the public interest in maintaining an exemption, or
(b) decides under section 13(4) that, in all the circumstances of the case, the public interest in disclosing any information does not outweigh the public interest in maintaining an exemption,'.

No. 54, in page 9, line 21, at end insert—

'(7) A notice under subsection (1), (3) or (5) must—

(a) contain particulars of any procedure provided by the public authority for dealing with complaints about the handling of requests for information or state that the authority does not provide such a procedure, and
(b) contain particulars of the right conferred by section 50.'.—[Mr. Mike Hall.]

Clause 16

THE INFORMATION COMMISSIONER AND THE INFORMATION TRIBUNAL

Mr. Hawkins: I beg to move amendment No. 110, in page 9, line 22, leave out clause 16.

Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 111, in page 56, line 13, leave out schedule 2.
No. 113, in clause 17, page 10, line 4, leave out "Commissioner" and insert "Ombudsman".
No. 114, in page 10, line 22, leave out "Commissioner" and insert "Ombudsman".
No. 115, in page 10, line 24, leave out "Commissioner" and insert "Ombudsman".
No. 116, in clause 18, page 10, line 28, leave out "Commissioner" and insert "Ombudsman".
No. 117, in page 10, line 32, leave out "Commissioner" and insert "Ombudsman".
No. 118, in page 10, line 37, leave out "Commissioner" and insert "Ombudsman".
No. 119, in page 10, line 39, leave out "Commissioner" and insert "Ombudsman".
No. 120, in page 10, line 41, leave out "Commissioner" and insert "Ombudsman".
No. 121, in page 10, line 43, leave out "Commissioner" and insert "Ombudsman".
No. 122, in page 11, line 3, leave out "Commissioner" and insert "Ombudsman".
No. 123, in page 11, line 7, leave out "Commissioner" and insert "Ombudsman".
No. 124, in page 11, line 10, leave out "Commissioner" and insert "Ombudsman".
No. 125, in clause 46, page 25, line 9, leave out "Commissioner" and insert "Ombudsman".
No. 126, in page 25, line 15, leave out "Commissioner" and insert "Ombudsman".
No. 127, in page 25, line 22, leave out "Commissioner" and insert "Ombudsman".
No. 128, in page 25, line 24, leave out "Commissioner" and insert "Ombudsman".
No. 129, in page 25, line 26, leave out "Commissioner" and insert "Ombudsman".
No. 130, in page 25, line 27, leave out "Commissioner" and insert "Ombudsman".
No. 131, in page 25, line 30, leave out "Commissioner" and insert "Ombudsman".
No. 132, in page 25, line 35, leave out "Commissioner" and insert "Ombudsman".
No. 133, in page 25, line 41, leave out "Commissioner" and insert "Ombudsman".
No. 134, in clause 47, page 25, line 44, leave out "Commissioner" and insert "Ombudsman".
No. 135, in page 26, line 6, leave out "Commissioner's" and insert "Ombudsman's".
No. 136, in page 26, line 10, leave out "Commissioner" and insert "Ombudsman".
No. 137, in page 26, line 16, leave out "Commissioner" and insert "Ombudsman".
No. 138, in clause 48, page 26, line 18, leave out "Commissioner" and insert "Ombudsman".
No. 139, in page 26, line 23, leave out "Commissioner" and insert "Ombudsman".
No. 140, in page 26, line 28, leave out "Commissioner" and insert "Ombudsman".
No. 141, in clause 49, page 26, line 32, leave out "Commissioner" and insert "Ombudsman".
No. 142, in page 26, line 34, leave out "Commissioner" and insert "Ombudsman".
No. 143, in clause 50, page 26, line 39, leave out "Commissioner" and insert "Ombudsman".
No. 144, in page 26, line 42, leave out "Commissioner" and insert "Ombudsman".
No. 145, in page 27, line 4, leave out "Commissioner" and insert "Ombudsman".
No. 146, in page 27, line 11, leave out "Commissioner" and insert "Ombudsman".
No. 147, in clause 51, page 27, line 35, leave out "Commissioner" and insert "Ombudsman".
No. 148, in page 28, line 1, leave out "Commissioner" and insert "Ombudsman".
No. 149, in page 28, line 6, leave out "Commissioner" and insert "Ombudsman".
No. 150, in page 28, line 8, leave out "Commissioner" and insert "Ombudsman".
No. 151, in page 28, line 31, leave out "Commissioner" and insert "Ombudsman".
No. 152, in clause 52, page 28, line 33, leave out "Commissioner" and insert "Ombudsman".
No. 153, in page 28, line 34, leave out "Commissioner" and insert "Ombudsman".
No. 154, in page 29, line 3, leave out "Commissioner" and insert "Ombudsman".
No. 155, in page 29, line 11, leave out "Commissioner" and insert "Ombudsman".
No. 156, in clause 53, page 29, line 17, leave out "Commissioner" and insert "Ombudsman".
No. 157, in clause 55, page 29, line 34, leave out "Commissioner" and insert "Ombudsman".
No. 158, in clause 56, page 29, line 39, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 173, in page 30, line 2, leave out "Commissioner" and insert "Ombudsman".
No. 159, in page 30, line 2, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 160, in clause 57, page 30, line 4, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 174, in page 30, line 8, leave out "Commissioner" and insert "Ombudsman".
No. 161, in page 30, line 10, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 175, in page 30, line 11, leave out "Commissioner" and insert "Ombudsman".
No. 162, in page 30, line 11, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 163, in page 30, line 13, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 164, in clause 58, page 30, line 15, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 165, in page 30, line 16, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 176, in clause 59, page 30, line 25, leave out "Commissioner" and insert "Ombudsman".
No. 166, in page 30, line 28, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 167, in page 30, line 30, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 168, in page 30, line 32, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 169, in page 30, line 34, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 170, in page 30, line 36, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 171, in page 30, line 42, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 172, in page 31, line 1, leave out "Tribunal" and insert "Parliamentary Information Committee".
No. 178, in clause 60, page 31, line 3, leave out from beginning to "provisions" in line 5 and insert "The".
No. 112, in page 62, line 16, leave out Schedule 4.
New clause 11—Information Ombudsman and Parliamentary Information Committee—

'(1) There shall be an officer of the House of Commons called the Information Ombudsman, who shall be appointed by the House of Commons.


(2) There shall be a committee of the House of Commons appointed, to be called the Parliamentary Information Committee.
(3) In this Act the Information Ombudsman is known as "the Ombudsman".'.

Mr. Hawkins: Although that was a long list of amendments, I am happy to be able to tell you, Mr. Deputy Speaker, and the House that I can be relatively brief.
Hon. Members who have been following these debates will realise that we are talking here about the belief of the Opposition—supported, I think, by others who sat on the Opposition side in Committee—that there should be an information ombudsman and a parliamentary information committee. My hon. Friend the Member for Ryedale (Mr. Greenway) spoke about this at length in Committee and I pay tribute to his work on the matter.
Parliament should have a say in ensuring that the public have access to information held by the Government and public authorities. The amendments would ensure that the task of enforcing the provision once it becomes an Act in some form or another—when another place has dealt with amendments such as No. 7, on which we recently voted—is kept separate from the work of the Data Protection Commissioner and the register. The two are distinct roles. One has the role of ensuring that personal information is not misused and the other has to ensure that as much information as possible is released.
In debates, the Government appear to have suggested that it would be unwise to give the Information Commissioner any more powers because of what has been caricatured as information override. In Committee, the Under-Secretary of State for the Home Department, the hon. Member for North Warwickshire (Mr. O'Brien), said that amendments that would allow the Information Commissioner the power to compel disclosure would
artificially and unnecessarily, create a democratic deficit.
We think, however, that the arrangements should be based on the very important work that has already been done, which we seek to extend, with regard to the Comptroller and Auditor General and the Public Accounts Committee. We feel strongly that this House should have a say in ensuring that the public have access to information held by the Government and by public authorities. Ultimately, it should be notfor Ministers, but for Parliament to decide whether information should be released in the public interest. That is why we have tabled these amendments.
7.30 pm
In Committee, the Under-Secretary said:
A democracy must mean something…Some of the arguments that we have heard, seeking to shift the balance towards allowing an unelected official to overrule the democratically elected Government, are profoundly undemocratic.—[Official Report. Standing Committee B, 8 February 2000; c. 431.]
There is a simple word to describe that very peculiar argument—oxymoron. The peculiar aspect is that it does not recognise the democratic deficit in the legislation. That may explain why the Parliamentary Secretary, Lord Chancellor's Department is responding to this debate rather than the Under-Secretary of State for the Home Department. We feel strongly that this House should have a role.
The Government believe that Ministers and judges must have the final say. We say that the public interest—which is different from what the public are interested in, although the media constantly seek to confuse the two—should ultimately be determined by those who have been elected to office.
Even if the Minister cannot accept the amendment today, I hope that perhaps in another place, or when the Bill comes back to this House after its consideration in another place, the Government will decide that we are right. If the Government accept our proposals, they will, in the long run, have the gratitude of those who seek to use—

Mr. Bercow: I am grateful to my hon. Friend for giving way. I follow the thrust of his argument. Will he confirm that we believe that Parliament, rather than Ministers or officials, should exercise discretion in these matters, but that it would be quite wrong wantonly and recklessly to cede that discretion to the Information Commissioner in the way that the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) seemed to advocate last night?

Mr. Hawkins: My hon. Friend is right. If the Government are introducing what they call a Freedom of Information Bill—the number of Labour Back-Benchers who have just voted against the Government shows that they have not even convinced many of their colleagues—they should do it properly. Because the Bill gives the Secretary of State and, ultimately, officials the final say over whether information should be released, there is undoubtedly a democratic deficit. Our proposals in new clause 11 and the amendments are the logical progression to the code of practice on access to Government information, which we introduced when in office.
Many people, including the Campaign for Freedom of Information, believe that not only have the Government gone back on their proposals in the Bill and the White Paper, but they are now making proposals that provide less freedom of information than the previous Government's code.

Mr. Lock: The Government's proposal is to create a single Information Commissioner, who will take over the actions and duties of the Data Protection Commissioner and will have responsibility for both freedom of information and data protection. The amendments would keep the Data Protection Commissioner doing her job and create a parliamentary information ombudsman to police the freedom of information regime.
Two arguments—incompatibility and resources—have been made for that proposal. Frankly, neither stands examination. On compatibility, the commissioner herself says that data protection rights and freedom of information rights are complementary and mutually supportive in practice, and that she supports having a single commissioner. The Conservative proposal is in direct opposition to the view of those who will have to operate the legislation and are most intimately acquainted with it.
Secondly, the proposals ignore the balance between personal and public data. There has to be a balance between what is confidential and what should be revealed. Under the proposed scheme, mutually inconsistent decisions from two different bodies will define that balance. That is a recipe for confusion and disaster.
Thirdly, the proposals ignore the effect on the public. The public need a single point of application if they want data. Quite often, they will ask for mixed personal data under the Data Protection Act 1998 and public data under the freedom of information legislation. Instead of having one body to approach, the Conservatives propose having two, so people would have to know in advance the precise structure of the legislation. It is a great shame that the Opposition spokesman cannot listen to the reasons why his proposal is not acceptable.
The point about resources is entirely false. Yes, it will take more resources to have a single commissioner, but to be honest, that expenditure has to be incurred anyway. The Opposition propose two bureaucracies, two sets of commissioners and two sets of investigations. Resources will be used much better if there is only one.
The Opposition's wish to divide the Data Protection Commissioner and the parliamentary Information Commissioner is, in one sense, unique. That course of action has been rejected in the common-law jurisdictions of Australia, New Zealand and Ireland. On this occasion, the Conservatives are going the Gallic way. They have been persuaded by the practice in France and are obviously moving further towards the practices of the European Union in this respect. This seems to be the one practice that they have chosen to adopt, having rejected all other aspects of French culture and nationality, and all the other attractions of France. I prefer the system in Australia, New Zealand and Ireland, which keeps the Information Commissioner and the Data Protection Commissioner under one roof.
The amendments would create a parliamentary committee for the exercise of appeal rights instead of the information tribunal that currently exists. That would lead to exactly the same problems as attempting to divide data protection and freedom of information responsibilities. It is constitutionally confused and inept. Such a committee would have to consider many individual cases in which individual pieces of information were being sought. Within the legal structure of the Bill, the committee would have a heavy work load, and would be concerned not with the policy, which is clearly a matter for Parliament, but with the application of that policy to Mrs. Jones who is trying to get information out of her local health authority. Policy is a matter for Parliament; individual decisions are a matter for a tribunal.
In any event, under the tribunal system, an appeal on a point of law will naturally go to the High Court. The Opposition ignore the fact that, if a matter comes before a committee that interprets the legislation wrongly, it will be invidious to ask a High Court judge to overrule a parliamentary committee. That, I am afraid, would be the effect of the process, or ideas, floated in this group of amendments. They simply will not work. There would be a data protection tribunal, which would set a balance between personal data and the disclosure of such matters, and a committee, often dealing with similar information but setting a different balance. The amendments will not work.
It has often been said that we should learn from the experience of other data protection regimes. Those that have succeeded, such as the ones in Australia, New Zealand and other common law jurisdictions, have recognised that the appeal structure in individual cases, rather than the supervision of policy, is a right matter for

a tribunal. I agree that the supervision of policy and its practical operation are matters for Parliament and that they should be kept under scrutiny.
However, we were not elected to Parliament to sit on a committee to hear appeals from all over the country about Mrs. Jones who wants information from her local health authority. That would be a decision for a tribunal. The operation of the overall policy is a matter for Parliament. The amendments confuse the distinction between individual cases and policy. I therefore urge the House to reject them. I encourage the hon. Member for Surrey Heath (Mr. Hawkins), now that he has heard about the problems with the amendments as they are currently drafted, to reconsider them. If he wants to pursue the matter, he might consider tabling in another place amendments that avoid the complications that I have outlined.

Mr. Simon Hughes: The Parliamentary Secretary, Lord Chancellor's Department prayed in aid the experiences of other jurisdictions. We are delighted to know that they are a source of inspiration for the Government. On this occasion, we are persuaded that the experience of other Administrations is a good thing. The Liberal Democrats share the Government's view on the structure for the Data Protection Commissioner and for the Information Commissioner.
We do not take the line proposed by the hon. Member for Surrey Heath (Mr. Hawkins) on behalf of the Conservatives. I was not sure whether the hon. Gentleman's amendment was a probing one or one with more potential. I hope that the debate has persuaded him that it was better as a probing amendment, and that he will reconsider the idea. The Conservatives advanced those ideas in Committee; we did not support them. The hon. Gentleman inadvertently suggested that we were on board on the amendment, but that is not so.
Sadly, the hon. Member for Buckingham (Mr. Bercow), who is accurate in many of his assertions, used an argument that I made yesterday on a different point as support for his intervention in relation to the amendment. My separate point—on which the hon. Gentleman may disagree—was in yesterday's debate on override. We were discussing whether there should be a democratic override, as described by the Government—coming back to Ministers appointed by Parliament—or whether the ultimate decision could be taken by an independently appointed authority. In this case, that would be the commissioner. We argued that it would be better to trust someone who was not a member of the Government on matters relating to Government information. Although I understand the Opposition's point of view, I do not accept it, so I hope that the hon. Gentleman will accept that, on this occasion, he was inadvertently misrepresenting me.

Mr. Bercow: On the question of procedural propriety, I readily concede to the hon. Gentleman on this occasion. However, the truth will out: I wanted to attack the hon. Gentleman's position yesterday, but he sat down before I had the opportunity to do so, so I thought I would use my intervention as an excuse for doing so today.

Mr. Hughes: If all the hon. Gentleman's attacks were 24 hours late, I would not have much to worry about.
An important issue in the debate is the citizen's knowledge—how to use the freedom of information system—to which the Minister rightly alluded. We have argued constantly—on Second Reading, in Committee and now on Report—that we need legislation that citizens can understand and of which they are in charge. The more straightforward the system, the better it will be.
It follows from that that the person responsible for the management of the processes whereby people are helped to inquire about the data held about them and the person managing the acquisition of information about public authorities could be the same person and could have the same staff. Indeed, that is the Government's position. The nomination has already been made; we know who is intended to fulfil that function. We support the Government on that matter.
I hope that the fact that we are so happy publicly to support the Government, despite the difference of views in the Chamber, shows how objective we are on each subject under debate. If there is another resurgence of the cross-party view—as I suspect there may be later on—it will be because of the same objective assessment of the facts and of the merits of the case. I hope that the Government will find that especially persuasive—perhaps more so on the amendments on which we have yet to vote than on the previous one, when they were on the defensive and on the wrong side of the argument.

Mr. Greenway: The House should reflect on three aspects of the proposed amendments. First, the cultural mindset of a Data Protection Commissioner is, in essence, one of secrecy; whereas the amendments would introduce, for the first time, a culture of openness. That is not meant to be critical of Miss Elizabeth France, the current Data Protection Commissioner, who will also undertake the role of Information Commissioner under the Government's proposals.
However, the longer we discussed the Bill in Committee, the more it became obvious that much of the current work of the commissioner on matters that relate to the Bill involves ensuring the secrecy of personal information about individuals. The work on freeing up information to be carried out by the new commissioner is a different matter. The Government have not given that point sufficient thought. That is why my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friend the Member for Surrey Heath (Mr. Hawkins) were right to pursue the matter.
The second point about our alternative proposal is that we feel strongly that there should have been a role for Parliament in overseeing the new freedom of information regime. Our debate on the availability of information—the facts and data that have underpinned and informed Government policy decisions—is another example of Parliament wanting to assert itself. Parliament is saying that we still have a role; we are not just a rubber stamp for everything that the Government or the Whitehall bureaucracy think is good for us. A parliamentary Committee to scrutinise the work of the Information Commissioner would be most beneficial.
The Minister will say, "But how many appeals will that Committee have to deal with?" We are not proposing a Committee in lieu of a commissioner—even if we are

talking about an Information Commissioner who is separate from the existing Data Protection Commissioner so as to reflect their two different roles. What we are proposing, however, is a Committee in lieu of the Government's proposed tribunal. How many appeals does the Minister think their tribunal will have to deal with? The impression given throughout the Committee stage was that it would not have to deal with that many—that Ministers will be so reasonable, as will other public authorities, in their interpretation of their responsibilities under the Bill, that appeals to the tribunal will be quite rare. I do not think it would be as onerous a task as the Minister implies for a parliamentary Committee to oversee the work of an independent Information Commissioner.
My third point is a practical one, which we addressed in Committee but which was not answered satisfactorily. There will be a huge programme of work in implementing the Bill. One must question whether it is sensible for the Data Protection Commissioner, at this key point when the Data Protection Act 1998 is coming on stream, also to have the programme of work under the Bill—work with regard to the 2,000 or more public authorities which it is anticipated will be affected by the Bill.
Under the Government's proposal, all that will have to be done by the selfsame Data Protection Commissioner and her staff, so there is still an opportunity for the idea of a separation of roles between data protection and information to be progressed further.
Neither my hon. Friend the Member for Surrey Heath nor I want to detain the House for too long on this point, but one other thing should be said. The Minister said that the Opposition in the other place could think through a better scheme, which the Government could then look at. I was encouraged by that. Perhaps, like the hon. Member for Somerton and Frome (Mr. Heath), I am unnecessarily optimistic, but the Minister has given us some encouragement. He will certainly have given the other place some encouragement to find a way in which to bring forward a scheme that might command more support and a more favourable response from Ministers.
Perhaps we have not given the attention to this proposal that we have given to some of the other meaty issues in the Bill. We have perhaps not thought through all the detail and structure in quite the way that we might have done if this were a Government proposal. I have, however, outlined several issues: the difference in cultural approach, arising from the fact that the Data Protection Commissioner is primarily involved in ensuring secrecy—confidentiality is perhaps a better word; the assertion that there should be a role for Parliament in overseeing the work of the Information Commissioner; and the huge practical work load that the Bill will put on the commissioner. Those issues suggest that the matter should be rethought. I hope that, in the other place, a scheme of arrangements that might commend itself not just to the Government, but to the other place as a whole, will be introduced, so that the Bill can be amended. In the meantime, I urge my hon. Friend to press the amendment to a Division to reinforce our view on the matter.

Mr. Hawkins: Again, I can be very brief. I am grateful to my hon. Friend the Member for Ryedale (Mr. Greenway) for what he has said. I will certainly accept his suggestion that we press the amendments—


which were never intended to be probing amendments—to a vote. I was encouraged by the Minister apparently leaving the door ajar.
Attention has been drawn to the fact that there is a similar regime in France. As a member of the Anglo-French all-party parliamentary group, I am delighted to find that my francophile tendencies are supported by what I am doing as a Front Bencher. I do not, however, accept the Minister's suggestion that the fact that some other Commonwealth countries have not accepted such a proposal is necessarily a criticism of it. As my hon. Friend said both tonight and in Committee, it would be a substantial and useful extra safeguard.
Like many other hon. Members, I am sure, I have always believed that the more parliamentary scrutiny there is, the better. There are far too many occasions when Members of all parties are ridiculed in the press and media. We are all the targets of criticism. We put ourselves up to be shot at. We must come to expect that. Nevertheless, whatever party we represent in this place, we all, I hope, have a genuine belief in the value of parliamentary scrutiny.
That is what the new clause and amendments are intended to achieve. We believe that they are right. We do not say that they are necessarily perfect. I was encouraged when the Minister suggested that, in another place, the issue might be returned to. It should be. Ultimately, it will be something that the Government will have to concede—I think the other place will insist that the Government do so. In the meantime I intend to press the amendments and the new clause to a vote.

Question put, That the amendment be made:—

The House divided: Ayes 116, Noes 373.

Division No. 145]
[7.56 pm


AYES


Ainsworth, Peter (E Surrey)
Flight, Howard


Amess, David
Forth, Rt Hon Eric


Arbuthnot, Rt Hon James
Fox, Dr Liam


Atkinson, Peter (Hexham)
Fraser, Christopher


Baldry, Tony
Gale, Roger


Bercow, John
Garnier, Edward


Beresford, Sir Paul
Gibb, Nick


Blunt, Crispin
Gillan, Mrs Cheryl


Body, Sir Richard
Gorman, Mrs Teresa


Boswell, Tim
Gray, James


Bottomley, Peter (Worthing W)
Green, Damian


Bottomley, Rt Hon Mrs Virginia
Greenway, John


Brady, Graham
Grieve, Dominic


Brazier, Julian
Gummer, Rt Hon John


Browning, Mrs Angela
Hamilton, Rt Hon Sir Archie


Bruce, Ian (S Dorset)
Hammond, Philip


Burns, Simon
Hawkins, Nick


Butterfill, John
Hayes, John


Chope, Christopher
Heald, Oliver


Clappison, James
Heseltine, Rt Hon Michael


Clifton-Brown, Geoffrey
Hogg, Rt Hon Douglas


Collins, Tim
Horam, John


Cran, James
Howard, Rt Hon Michael


Davies, Quentin (Grantham)
Hunter, Andrew


Davis, Rt Hon David (Haltemprice)
Johnson Smith, Rt Hon Sir Geoffrey


Day, Stephen



Donaldson, Jeffrey
Key, Robert


Dorrell, Rt Hon Stephen
King, Rt Hon Tom (Bridgwater)


Duncan, Alan
Kirkbride, Miss Julie


Duncan Smith, Iain
Laing, Mrs Eleanor


Evans, Nigel
Leigh, Edward


Fabricant, Michael
Letwin, Oliver


Fallon, Michael
Lidington, David





Lloyd, Rt Hon Sir Peter (Fareham)
Sayeed, Jonathan


Loughton, Tim
Shephard, Rt Hon Mrs Gillian


Luff, Peter
Spelman, Mrs Caroline


Lyell, Rt Hon Sir Nicholas
Spring, Richard


McIntosh, Miss Anne
Stanley, Rt Hon Sir John


MacKay, Rt Hon Andrew
Streeter, Gary


Maclean, Rt Hon David
Swayne, Desmond


McLoughlin, Patrick
Syms, Robert


Madel, Sir David
Tapsell, Sir Peter


Malins, Humfrey
Taylor, Ian (Esher & Walton)


Maples, John
Taylor, John M (Solihull)


Mates, Michael
Tredinnick, David



Trend, Michael


May, Mrs Theresa
Tyrie, Andrew


Moss, Malcolm
Viggers, Peter


Nicholls, Patrick
Walter, Robert


Norman, Archie
Waterson, Nigel


O'Brien, Stephen (Eddisbury)
Wells, Bowen


Ottaway, Richard
Whitney, Sir Raymond


Page, Richard
Whittingdale, John


Paice, James
Winterton, Mrs Ann (Congleton)


Pickles, Eric
Winterton, Nicholas (Macclesfield)


Redwood, Rt Hon John
Yeo, Tim


Robathan, Andrew
Young, Rt Hon Sir George


Robertson, Laurence



Roe, Mrs Marion (Broxbourne)
Tellers for the Ayes:


Ruffley, David
Mr. Keith Simpson and


St Aubyn, Nick
Mr. John Randall.




NOES


Ainger, Nick
Byers, Rt Hon Stephen


Ainsworth, Robert (Cov'try NE)
Caborn, Rt Hon Richard


Alexander, Douglas
Campbell, Alan (Tynemouth)


Allan, Richard
Campbell, Mrs Anne (C'bridge)


Anderson, Donald (Swansea E)
Campbell, Rt Hon Menzies (NE Fife)


Anderson, Janet (Rossendale)



Armstrong, Rt Hon Ms Hilary
Campbell, Ronnie (Blyth V)


Ashton, Joe
Campbell-Savours, Dale


Atherton, Ms Candy
Cann, Jamie


Atkins, Charlotte
Caplin, Ivor


Austin, John
Casale, Roger


Ballard, Jackie
Caton, Martin


Barnes, Harry
Cawsey, Ian


Barron, Kevin
Chapman, Ben (Wirral S)


Bayley, Hugh
Chaytor, David


Beard, Nigel
Church, Ms Judith


Beckett, Rt Hon Mrs Margaret
Clapham, Michael


Begg, Miss Anne
Clark, Rt Hon Dr David (S Shields)


Bell, Martin (Tatton)
Clark, Dr Lynda (Edinburgh Pentlands)


Benn, Hilary (Leeds C)



Benn, Rt Hon Tony (Chesterfield)
Clark, Paul (Gillingham)


Bennett, Andrew F
Clarke, Charles (Norwich S)


Benton, Joe
Clarke, Eric (Midlothian)


Bermingham, Gerald
Clarke, Tony (Northampton S)


Berry, Roger
Clelland, David


Best, Harold
Clwyd, Ann


Betts, Clive
Coaker, Vernon


Blackman, Liz
Coffey, Ms Ann


Blears, Ms Hazel
Cohen, Harry


Blizzard, Bob
Coleman, Iain


Boateng, Rt Hon Paul
Colman, Tony


Bradley, Keith (Withington)
Connarty, Michael


Bradley, Peter (The Wrekin)
Cook, Frank (Stockton N)


Bradshaw, Ben
Cooper, Yvette


Brake, Tom
Corbett, Robin


Brand, Dr Peter
Corston, Jean


Breed, Colin
Cotter, Brian


Brinton, Mrs Helen
Cousins, Jim


Brown, Rt Hon Nick (Newcastle E)
Cranston, Ross


Brown, Russell (Dumfries)
Cryer, John (Hornchurch)


Browne, Desmond
Cummings, John


Buck, Ms Karen
Cunningham, Rt Hon Dr Jack (Copeland)


Burden, Richard



Burgon, Colin
Cunningham, Jim (Cov'try S)


Burstow, Paul
Dalyell, Tam


Butler, Mrs Christine
Darling, Rt Hon Alistair






Darvill, Keith
Hughes, Simon (Southwark N)


Davey, Valerie (Bristol W)
Humble, Mrs Joan


Davidson, Ian
Hurst, Alan


Davies, Rt Hon Denzil (Llanelli)
Hutton, John


Davies, Geraint (Croydon C)
Iddon, Dr Brian


Dawson, Hilton
Illsley, Eric


Dean, Mrs Janet
Ingram, Rt Hon Adam


Denham, John
Jackson, Ms Glenda (Hampstead)


Dismore, Andrew
Jackson, Helen (Hillsborough)


Dobbin, Jim
Jamieson, David


Donohoe, Brian H
Jenkins, Brian


Doran, Frank
Johnson, Alan (Hull W & Hessle)


Dowd, Jim
Johnson, Miss Melanie (Welwyn Hatfield)


Dunwoody, Mrs Gwyneth



Eagle, Angela (Wallasey)
Jones, Rt Hon Barry (Alyn)


Eagle, Maria (L'pool Garston)
Jones, Helen (Warrington N)


Edwards, Huw
Jones, Jon Owen (Cardiff C)


Ellman, Mrs Louise
Jones, Dr Lynne (Selly Oak)


Ennis, Jeff
Jones, Martyn (Clwyd S)


Fearn, Ronnie
Jowell, Rt Hon Ms Tessa


Field, Rt Hon Frank
Kaufman, Rt Hon Gerald


Fisher, Mark
Keeble, Ms Sally


Fitzpatrick, Jim
Keen, Alan (Feltham & Heston)


Fitzsimons, Lorna
Keetch, Paul


Flint, Caroline
Kemp, Fraser


Follett, Barbara
Kennedy, Rt Hon Charles (Ross Skye & Inverness W)


Foster, Rt Hon Derek



Foster, Don (Bath)
Kennedy, Jane (Wavertree)


Foster, Michael Jabez (Hastings)
Khabra, Piara S


Foster, Michael J (Worcester)
Kidney, David


Foulkes, George
Kilfoyle, Peter


Galloway, George
King, Andy (Rugby & Kenilworth)


Gapes, Mike
King, Ms Oona (Bethnal Green)


Gardiner, Barry
Kirkwood, Archy


George, Andrew (St Ives)
Ladyman, Dr Stephen


George, Bruce (Walsall S)
Lawrence, Mrs Jackie


Gerrard, Neil
Laxton, Bob


Gilroy, Mrs Linda
Lepper, David


Godman, Dr Norman A
Leslie, Christopher


Godsiff, Roger
Levitt, Tom


Goggins, Paul
Lewis, Ivan (Bury S)


Golding, Mrs Llin
Lewis, Terry (Worsley)


Gordon, Mrs Eileen
Liddell, Rt Hon Mrs Helen


Graham, Thomas
Linton, Martin


Griffiths, Jane (Reading E)
Llwyd, Elfyn


Griffiths, Nigel (Edinburgh S)
Lock, David


Griffiths, Win (Bridgend)
Love, Andrew


Grocott, Bruce
McAvoy, Thomas


Grogan, John
McCabe, Steve


Gunnell, John
McDonagh, Siobhain


Hall, Mike (Weaver Vale)
Macdonald, Calum


Hall, Patrick (Bedford)
McDonnell, John


Hamilton, Fabian (Leeds NE)
McFall, John


Hanson, David
McIsaac, Shona


Harris, Dr Evan
McKenna, Mrs Rosemary


Harvey, Nick
Maclennan, Rt Hon Robert


Heal, Mrs Sylvia
McNulty, Tony


Healey, John
Mactaggart, Fiona


Heath, David (Somerton & Frome)
McWalter, Tony


Henderson, Doug (Newcastle N)
McWilliam, John


Hepburn, Stephen
Mahon, Mrs Alice


Heppell, John
Mallaber, Judy


Hesford, Stephen
Marsden, Gordon (Blackpool S)


Hill, Keith
Marsden, Paul (Shrewsbury)


Hinchliffe, David
Marshall, David (Shettleston)


Hodge, Ms Margaret
Marshall, Jim (Leicester S)


Hoey, Kate
Marshall-Andrews, Robert


Hood, Jimmy
Martlew, Eric


Hoon, Rt Hon Geoffrey
Maxton, John


Hope, Phil
Meacher, Rt Hon Michael


Hopkins, Kelvin
Merron, Gillian


Howarth, Alan (Newport E)
Michie, Bill (Shef'ld Heeley)


Howarth, George (Knowsley N)
Milburn, Rt Hon Alan


Howells, Dr Kim
Miller, Andrew


Hoyle, Lindsay
Moffatt, Laura


Hughes, Kevin (Doncaster N)
Moonie, Dr Lewis





Moore, Michael
Smith, Jacqui (Redditch)


Moran, Ms Margaret
Smith, John (Glamorgan)


Morgan, Ms Julie (Cardiff N)
Smith, Llew (Blaenau Gwent)


Morley, Elliot
Smith, Sir Robert (W Ab'd'ns)


Morris, Rt Hon Ms Estelle (B'ham Yardley)
Soley, Clive



Southworth, Ms Helen


Mountford, Kali
Spellar, John


Mudie, George
Squire, Ms Rachel


Mullin, Chris
Starkey, Dr Phyllis


Murphy, Denis (Wansbeck)
Steinberg, Gerry


Murphy, Jim (Eastwood)
Stevenson, George


Murphy, Rt Hon Paul (Torfaen)
Stewart, David (Inverness E)


Naysmith, Dr Doug
Stewart, Ian (Eccles)


Norris, Dan
Stinchcombe, Paul


Oaten, Mark
Stoate, Dr Howard


O'Brien, Bill (Normanton)
Strang, Rt Hon Dr Gavin


O'Brien, Mike (N Warks)
Straw, Rt Hon Jack


Olner, Bill
Stringer, Graham


O'Neill, Martin
Stuart, Ms Gisela


Öpik, Lembit
Stunell, Andrew


Organ, Mrs Diana
Sutcliffe, Gerry


Osborne, Ms Sandra
Taylor, Rt Hon Mrs Ann (Dewsbury)


Palmer, Dr Nick



Pearson, Ian
Taylor, Ms Dari (Stockton S)


Perham, Ms Linda
Taylor, David (NW Leics)


Pickthall, Colin
Taylor, Matthew (Truro)


Pike, Peter L
Temple-Morris, Peter


Plaskitt, James
Thomas, Gareth (Clwyd W)


Pollard, Kerry
Thomas, Gareth R (Harrow W)


Pond, Chris
Timms, Stephen


Powell, Sir Raymond
Tipping, Paddy


Prentice, Ms Bridget (Lewisham E)
Todd, Mark


Prentice, Gordon (Pendle)
Tonge, Dr Jenny


Prescott, Rt Hon John
Touhig, Don


Primarolo, Dawn
Trickett, Jon


Prosser, Gwyn
Truswell, Paul


Purchase, Ken
Turner, Dennis (Wolverh'ton SE)


Quinn, Lawrie
Turner, Dr George (NW Norfolk)


Radice, Rt Hon Giles
Turner, Neil (Wigan)


Rammell, Bill
Twigg, Derek (Halton)


Raynsford, Nick
Twigg, Stephen (Enfield)


Reed, Andrew (Loughborough)
Tyler, Paul


Reid, Rt Hon Dr John (Hamilton N)
Tynan, Bill


Rendel, David
Walley, Ms Joan


Robinson, Geoffrey (Cov'try NW)
Ward, Ms Claire


Roche, Mrs Barbara
Wareing, Robert N


Rogers, Allan
Watts, David


Rooker, Rt Hon Jeff
Webb, Steve


Rooney, Terry
White, Brian


Ross, Ernie (Dundee W)
Whitehead, Dr Alan


Rowlands, Ted
Wicks, Malcolm


Roy, Frank
Williams, Rt Hon Alan (Swansea W)


Ruane, Chris



Russell, Bob (Colchester)
Williams, Alan W (E Carmarthen)


Russell, Ms Christine (Chester)
Williams, Mrs Betty (Conwy)


Ryan, Ms Joan
Willis, Phil


Salter, Martin
Wills, Michael


Sanders, Adrian
Wilson, Brian


Sarwar, Mohammad
Winnick, David


Savidge, Malcolm
Winterton, Ms Rosie (Doncaster C)


Sawford, Phil
Wood, Mike


Sedgemore, Brian
Woodward, Shaun


Shaw, Jonathan
Woolas, Phil


Shipley, Ms Debra
Worthington, Tony


Simpson, Alan (Nottingham S)
Wright, Anthony D (Gt Yarmouth)


Singh, Marsha
Wright, Dr Tony (Cannock)


Skinner, Dennis
Wyatt, Derek


Smith, Rt Hon Andrew (Oxford E)



Smith, Angela (Basildon)
Tellers for the Noes:


Smith, Miss Geraldine(Morecambe & Lunesdale)
Mrs. Anne McGuire and



Mr. Greg Pope.

Question accordingly negatived.

Schedule 2

THE COMMISSIONER AND THE TRIBUNAL

Mr. Shepherd: I beg to move amendment No. 177, in page 58, line 42, leave out paragraph 19.
Schedule 2 makes the commissioner subject to a new prohibition on disclosure of information about to come into force under the Data Protection Act 1998. The commissioner and her staff would face criminal charges for disclosing certain information under the Bill. Disclosures could be made only if they were "necessary" for their functions or "necessary" in the public interest. The "necessary" test is a strict one which may prevent disclosure by the commissioner in many circumstances. The present Data Protection Commissioner, who will become the first Information Commissioner, has expressed concern.
Under section 59 of the Data Protection Act, the Data Protection Commissioner is subject to a statutory prohibition on the disclosure of certain information. Schedule 2(19) of the Bill extends that prohibition to the Information Commissioner. The effect may be to prevent the commissioner and her staff from disclosing information about how or whether they are handling particular complaints, where this involves the release of information about identifiable businesses. That may become relevant where an authority has refused to disclose information about a particular company to an applicant.
In some cases, businesses may be public authorities in relation to certain functions. For example, under clause 4(1)(a), private bodies with public functions can be brought within the scope of the Bill by an order in relation to specified functions. That might apply to companies such as Group 4 in relation to prison contracts. The registrar has disputed this view because article 28.7 of the data protection directive states:
Member states shall provide that the members and staff of the supervisory authority are to be subject to a duty of professional secrecy with regard to confidential information to which they have access.
However, the Data Protection Commissioner has said:
The Registrar does not believe that the Directive requires the criminal provisions provided by clause 54 [now section 59]. She believes that the existing law combined with appropriate conditions and staff contracts will satisfy the requirements of Article 28.7.
Whatever the legal position in relation to the Data Protection Act, the offence cannot be required in relation to the commissioner's freedom of information functions. That is relevant to the arguments that were adduced by hon. Friend the Member for Surrey Heath (Mr. Hawkins) a few minutes ago, as those functions do not flow from the directive or other Community obligations or assert the primacy of Community law over our domestic legislation.
The rationale for extending the offence appears to be based merely on an unnecessary preference for consistency. I shall not read out the prohibition on disclosure in section 59 of the DPA, which will apply to the Information Commissioner, as I know that the Department is well apprised of the matter.
The effect of that provision is to expose the commissioner to risk of prosecution if she discloses information obtained under the Freedom of Information Bill about an identifiable individual or business—the

latter will be the real issue—without their consent, unless the information was supplied in order for her to publish it or the disclosure was for the purpose of legal proceedings. In any other circumstance, the commissioner would have to show that one of two conditions could be met.
The first is that the disclosure is "necessary" for the discharge of any of the commissioner's functions. It is a strict test. If the function can be discharged without releasing the information, disclosure may not be necessary. It may not be possible to show that it is necessary for the commissioner to identify a company that opposes the disclosure of information about defective products, safety problems or discriminatory employment practices, if the commissioner can still discharge her function by referring to it anonymously.
The second condition is that the disclosure is necessary in the public interest, having regard to
the rights, freedoms or legitimate interests
of any person. This would no doubt protect a disclosure made to the applicant or someone else with a direct interest, but it would leave open the possibility of an offence if disclosure were made to the press or public generally. Again, the problem is that "necessary" means that
the rights, freedoms or legitimate interests
of any person would be harmed if the information could not be disclosed and that that would be contrary to the public interest.
8.15 pm
Disclosure in the interests of the accountability of the authorities to whom freedom of information requests are made, or the accountability of the commissioner herself, may not pass the "necessary" test. A purposes clause which made clear that the Bill was intended to promote accountability could provide some statutory safeguard. However, the Government have resisted such a provision.
The most objectionable element of the restriction is that it contains no "harm" test. The offence is not limited to the disclosure of trade secrets or commercially damaging information, but could be caused by a harmless disclosure of information about an identifiable business. The perverse consequence would be that information about a business which an authority would have to disclose under the Bill, because it did not reveal a trade secret or prejudice the commercial interests of the business concerned, could result in the commissioner being convicted of a criminal offence if she disclosed it.
At the time of the Data Protection Bill's passage through the House, the registrar commented:
The effect of clause 54—
which is now section 59—
is potentially to criminalise disclosures of information relating to an identifiable business in circumstances where it could not sensibly be maintained that this could cause any harm. For example, where a journalist queries the lawfulness of a company's processing activities, a member of the Commissioner's staff could commit a criminal offence simply by confirming that the company had discussed the processing in question with the Registrar because this disclosure is clearly not absolutely necessary for the discharge of the Commissioner's functions under the Act. The Registrar has always sought to be as open as possible with the Press. She is aware of no evidence that this has caused any individual or company significant harm. She is therefore concerned that this clause could require her and her staff to be unnecessarily guarded in future.


Such a restraint on the Data Protection Commissioner's dealings with the press would be undesirable; to restrain the Information Commissioner would be unthinkable. It could undermine her ability to explain the basis of her approach. Any suggestion of secrecy on the part of the commissioner could damage the credibility of the legislation itself.
During the Data Protection Bill's passage through the House, the Government suggested that the Data Protection Commissioner's general power to disseminate information—the Information Commissioner would have the identical power—would protect the commissioner in making the necessary disclosures. However, the Minister himself suggested that this would allow the publication of "anonymised" information, implying that the disclosure of company-specific information would be constrained.
A similar general power to publish information, coupled with the specific prohibition of disclosures, appears in the Health and Safety at Work, etc. Act 1974. The Health and Safety Commission and the Health and Safety Executive have long maintained that it prevents them from disclosing information obtained under their powers unless disclosure is strictly necessary for health and safety purposes.

Mr. Dalyell: I apologise for interrupting the hon. Gentleman, who is making a very well-sculpted speech, but could he share with us whose view this is? He is reading out a highly technical, carefully worded legal view. Whose view is it?

Mr. Shepherd: I am grateful to the hon. Gentleman for raising that point. Of course it is the view of the Data Protection Registrar, as was. It was put forward during the DPA's passage through the House, but it did not obtain a satisfactory response. That is why it has had to be raised again. I apologise to the House for the sheer technicality of the explanation, but we never succeeded in getting a Minister to focus on it. I gave Ministers advance notice of my previous endeavours to raise the matter and I accept that it is highly technical.

Mr. Lock: May I speed things up by saying that I have seen the freedom of information brief, that the hon. Gentleman can assume that I am aware of what it says, and that I shall respond to that brief as to his speech?

Mr. Shepherd: I was referring to the earlier stages when the Data Protection Bill was passing through this place. This speech is almost a repeat of the previous speech so it is in the machinery of Government, and the Whips Office has it—the Minister may relax.
It was hoped that the debate would not be a dialogue of the deaf, in which I would read a highly technical script and the Government would brush it aside. There is a point of importance in this, and, in that sense, I am grateful for the Minister's intervention. If he has something material to say, I shall conclude my speech. He has the information; he has the brief; he is apprised of the argument; and we would like a response and action.

Mr. Lock: I shall not detain the House by explaining the background to the debate and the purpose and effect

of section 59 of the Data Protection Act 1998, other than to say that it requires the Data Protection Commissioner not to disclose information save in specified circumstances. Section 59 is required by article 28(7) of the European data protection directive, and—this may be a crucial point—schedule 2 of the Bill applies the relevant parts of the Data Protection Act 1998 to the Bill; and paragraph 19 of the schedule extends the duty of confidentiality and the related offence in section 59 of the DPA to information obtained by the commissioner for the purposes of the Bill. The effect of amendment No. 177 would be to disapply that extension.
I heard what the hon. Member for Aldridge-Brownhills (Mr. Shepherd) said, but the Government's view is that the amendment would lead to an impossible situation for the commissioner and her staff, because we do not believe that it is possible for section 59 to bite for one regime and not for another. We have already said that we believe that the vast majority of requests for information and, consequently, complaints to the commissioner, will involve both personal and non-personal information. Therefore, the information obtained by the commissioner will not fall neatly into one regime or the other—one to which section 59 would apply, and another to which it would not. So, because we have to have section 59 for the purposes of the data protection regime, the only practical way forward is to have it also for the purposes of the freedom of information regime.
However, the Data Protection registrar expressed two concerns. She has expressed concern, first, that she would be unable to share information with other investigatory bodies—such as various public sector ombudsmen—which she may have been in contact with in the course of investigating a complaint; and secondly, that the prohibition on disclosure without lawful authority could act to prevent the commissioner from disclosing the fact that she had received a complaint and that she was investigating it, which would be contrary to the principles of freedom of information.
I tell the hon. Gentleman that we have listened very carefully to both those complaints. We accept the strength of the argument for an amendment to the Bill to allow information to be shared by and between the commissioner and other proper regulatory investigatory bodies, and we shall table an amendment to that effect in another place to deal with that perfectly legitimate concern.
We have considered the second objection, and we are not satisfied that schedule 2 would have the effect claimed. From the Government's perspective, nothing in the Bill seeks to prevent the release by the Information Commissioner of information about the handling of complaints where that disclosure was made with the consent of the individual or company to whom the information, obtained in accordance with section 59 of the Data Protection Act 1998, relates.
I have heard the hon. Gentleman's argument, but where information is sought, the application has been made and the person making the application does not wish it to become public at that time that they are making the application, in the Government's view it is right that the Information Commissioner, who is carrying out a statutory function on behalf of that individual, should not be able to overrule that view and routinely disclose the information that she was looking into that complaint. The Information Commissioner's office is not intended to be


an alternative source of information that is available under the Bill for public authorities, and there is no need for the commissioner to disclose information obtained from a public authority if that information is obtainable under the Bill.
Furthermore, the commissioner can lay reports before Parliament about the exercise of her functions under the Bill and will do so, as clause 49 provides. Any disclosure of information in such reports would obviously be done for the purpose of, and be necessary for, the exercise of the commissioner's functions, and there would therefore be lawful authority for that. If the commissioner is worried about any matter that comes up in an individual complaint, the right body to report it to is Parliament through the laying of a report under clause 49; it would not necessarily be right for the commissioner to report the matter to the press against the view of the individual who was submitting the complaint.
Thus we accept that section 59 of the DPA will inhibit the exercise of the commissioner's functions save in the one respect that I have mentioned, and the Government will table an amendment in the other place. I acknowledge the problem, and the balance that has to be struck, but I hope that that concession concerning the operation of the interrelations between the commissioner and other regulatory bodies is enough to satisfy the hon. Gentleman that we have taken the issue seriously and cause him to ask leave to withdraw his amendment.

Mr. Shepherd: I am very grateful to the Minister for his detailed reply. There clearly is a conflict in the understanding of what is happening here. I am not the arbitrator on this, but my instinct is that when the former registrar, who will be the commissioner, has an anxiety about a matter, that must be weighed most carefully. I hope that, during the Bill's passage through this place and another place, the Minister will reflect very carefully on other representations that will undoubtedly be made to him.
In the spirit and light of the observations that he and I have made, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19

INFORMATION ACCESSIBLE TO PUBLIC BY OTHER MEANS

Amendments made: No. 55, in page 11, line 15, leave out "members of the public" and insert "the applicant".

No. 56, in page 11, line 18, leave out "members of the public" and insert "the applicant".

No. 57, in page 11, line 20, leave out "members of the public" and insert "the applicant".

No. 58, in page 11, line 22, leave out from "to" to "whether" in line 24 and insert—
'communicate (otherwise than by making the information available for inspection) to members of the public on request'.

No. 59, in page 11, line 27, leave out "members of the public" and insert "the applicant".—[Mr. Lock.]

Clause 21

INFORMATION SUPPLIED BY, OR RELATING TO, BODIES DEALING WITH SECURITY MATTERS

Mr. Shepherd: I beg to move amendment No. 92, in page 12, line 1, leave out clause 21.

Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 93, in clause 22, page 12, line 33, leave out from "if' to end of line 34 and insert—
Its disclosure would, or would be likely to, prejudice national security'.
No. 94, in page 12, leave out lines 36 and 37 and insert—
'compliance with section 1(1)(a) would, or would be likely to, prejudice national security'.
No. 95, in page 12, line 38, leave out subsections (3) and (4).
No. 96, in page 13, line 1, leave out clause 23.
No. 97, in clause 82, page 39, line 23, leave out from beginning to "or" in line 24.

Mr. Shepherd: Everyone who has read the Bill will notice that one of its interesting features, as listed in the schedules, is the fact that the security services are not included. The purpose of amendment No. 92 is to delete clause 21, so that it would not be possible to withhold information merely because it related to, or had indirectly come from, one of the listed bodies.
Amendment No. 97 would bring the security and intelligence services within the Bill's scope by amending the definition of "government department" in clause 82.
Amendments Nos. 93 to 96 would revise the Bill's exemption for national security. Instead of a ministerial certificate, information would be withheld only where disclosure would, or would be likely to, prejudice national security.
I know that the House always treats with the greatest deference the whole concept of those big words "national security" and "the security services", but in truth this is meant to be a freedom of information Bill, and it should reach in and touch every area of our national life if it is to have meaning.
I know of no one in the House who dissents from the proposition that we have national security needs, and that they are taken very seriously. However, one has only to read the Security Service Act 1996 and look at the remit of the security services to see that it is now vast and comprehensive, moving into areas that we would not readily and easily associate with the general concept of the security of the nation. They have economic functions. They work in Departments in a way that means that information crosses the desks of Departments of state that are listed in the Bill.
I am mindful of the fact that others have a view on this issue. For example, a recent book reports:
The police complain that giving MI6 a greater policing role places areas such as drugs trafficking off limits to democratic accountability. The Police Foundation's Barrie Irving has argued that such policies are "short-sighted". MI6 contends that "it needs to operate in secret, but once you change the role to criminal justice you blur the distinction between state security and criminal justice. It seems unconstitutional to conduct policing in this way.


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I do not want to make a meal of this matter. I know that the House wants to get to the nitty-gritty of what we understand by freedom of information legislation. However, in earlier discussions in the House, we heard an assertion about where we stand in relation to the great organisations of the state. The security services, their remit and the legislation covering them enabled them, on a certificate, to act outside the call of the courts in many instances. Officers of the security services were even totally excluded from being able to admit that they were once officers, and absolute offences were attached to the nature of the service itself and to its personnel.
About 10 or 12 years ago, some of us judged that that was offensive and that it struck at the principle that the security services should be a valued and important part of the apparatus of securing the well-being of our country and our citizens.
The amendments say that the security services have a series of responsibilities. They include housekeeping and simple functions relating to the costs of buildings. The Home Secretary, no less, told us that he thought that information on the cost of the headquarters of MI5 and MI6 should be available to the House. The Chairman of the Public Accounts Committee told us how difficult it had been for him, his very distinguished predecessor, and the Chairman of the oversight Committee to act together to bring such information into the public domain.
Does such information cause a threat or any damage or prejudice? That is the question that I want to be able to ask. However, under the provisions of clauses 21 and 22, we are not able even to ask such a question. There is a total exemption for such information.
I do not want to dramatise the role of the security services. Much of their work is mundane, but it touches on social security and the economic interests of the country, among other things. That goes to the heart of what many of us believe public debate should involve. The amendments would provide the lowest possible harm test threshold. Would making such information available cause harm, or "prejudice", to use the Government's word? It is a terribly weak test.
I have been a Member of the House for some years and I see others who were here when even to acknowledge that we had security services would cause grim faces and the grinding of teeth. Ministers would regularly say from the Dispatch Box that they did not comment on such matters.
The move to put the security services on a statutory basis was forced by judges who said that the services were effectively operating outside the law. They brought them within our cognisance. Today, the security services advertise for recruits and the heads of the services conduct interviews and public lectures. The exemption in the Bill belongs to the past. It seeks an absolute exemption for everything no matter how "small" or "trivial", words that appear in the Security Service Act 1989. There is no deminimis provision governing a security officer reporting something.
When information crosses a desk, the commissioner should be able to assess whether it involves prejudice. If the Government do not like the response, they have the route under the Bill—we have not discussed new clause 6 yet—of appeal to a tribunal and, as they keep telling us, of judicial review.
There is merit in my modest proposal. However, the words "national security" have such a heavy import for the House. Over many years, we have been greatly misled and deceived as to whether an issue was of great national interest or security. The old barriers are coming down and many members of the services did not want to be perceived in the way they were. It simply enabled any rumour or suspicion to be made up about them.
To defend ourselves, we should apply a weak test to matters of prejudice, even though everything can be construed as causing prejudice. Information, such as costs, should not be exempt, and there will be a proper system of appeal by the Minister to a tribunal. I therefore suggest that the amendments are of no small merit. I would be grateful if the Government reflected seriously on them. The Home Secretary made much of this exemption, and he could not have been sterner. He said no to a prejudice test for social security matters, and for police matters—until we had a report, Macpherson's, that actually suggested a high prejudice or harm test.
I hope that the proposals will form part of our growing up as a society and the Government as a Government. Distinctions must be made. Frauds and bounders exist and poor processes take place within the security service, as in all walks of life. Making them more effective does not involve secrecy. I notice that a distinguished member of the oversight committee is present, but I am not entirely satisfied by the fact that it must meet in secrecy. Even its reports are subject to editing and white spacing of some of the points that it makes. The House knows almost nothing about what goes on in the committee.
We shall come to important amendments on the harm test that were tabled by the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan). However, I suggest that it would be easy to accept these amendments. Despite all the clangs of yesteryear and all the loud words on nuclear espionage, the security services often produce essential but mundane information that does not give rise to a threat to the security of this country. Because their remit reaches issues of daily life, such as social security and fraud, the amendments should be accepted.

Mr. Fisher: I had not intended to speak, but as I listened to the hon. Member for Aldridge-Brownhills (Mr. Shepherd) make his case, it occurred to me that, so often over the past 20 years, his has been the sole voice of sanity on these issues, and his was a lone and courageous voice attacking the Conservative Government and the Official Secrets Act that they passed. I do not want to detain the House, and I am sure that he would have answered the case on its merits, but I did not want my hon. Friend the Minister to think that the hon. Gentleman was again speaking from the isolated position of an obsessive. The fact that the hon. Gentleman has pursued these matters with such consistency and determination over the years is not the result of obsession; his is an entirely proper interest and it is to the discredit of other Members of Parliament that they do not often join him in his campaigns.
The hon. Gentleman's point about the degree of protection afforded by the provisions being out of tune with the times and the rest of the Bill is correct. There was a time when the security services were not mentioned at all. Ministers would refer to them as "the friends", because they could not be named—they were the shades


who could not be looked at directly and who were but shadowy figures in government. Fortunately, things have changed over the past 10 years. We now know the names of the heads of MI5 and MI6; they give press conferences and they are public figures. Their headquarters are, at last, a publicly recognised building. The fact that that building is one of the most appalling pieces of architecture ever to blot the London skyline, and that disgraceful sums were spent on it, is a separate matter. I hasten to add that I have a great liking and respect for the excellent architect, even if it is one of the worst buildings of his distinguished career.
The building's public profile is symbolic of the fact that we now recognise the existence of MI5 and MI6, but by putting such a huge rampart around all their activities, the Bill does not afford them the same degree of recognition. Even the most innocuous and simple matters of public expenditure within that building, such as tenders for furniture and services, maintenance costs, and the number of people on full-time contracts, are outwith parliamentary scrutiny. That cannot make sense. No risk is posed to national security by allowing a degree of scrutiny of innocuous matters—scrutiny that is carefully controlled through a prejudice test that would filter out questions that might prejudice our security, which is something that no Member of Parliament or citizen of this country would want to do.
The Government have slightly misjudged the changes surrounding the security services—changes that they and the previous Government made. I hope that, between consideration here and in the other place, Ministers will consider, even at this late stage, the possibility that they are being too cautious. Nobody wants information about the security functions of the security services, but they have plenty of other functions and are connected with plenty of other matters of public concern and public expenditure that fall properly within the public domain.

Mr. Dale Campbell-Savours: Under existing systems, that material can already enter the public domain. It is filtered through a Committee, and the only material that is excised from the reports of that Committee relates essentially to the security of the state and operational matters. Hence I cannot understand my hon. Friend's concern.

Mr. Fisher: I am grateful for my hon. Friend's intervention, because he makes my point for me: the information is available, so the Bill that gives us the right of access to information should recognise that. The import of my hon. Friend's remarks is that we have nothing to fear—the information is already out. My argument is that that should be recognised in the Bill.
The Bill will codify the degree and the extent of the access that we as a nation have to information. It is wonderful that the Committee of which my hon. Friend is a distinguished member brings such matters to our attention, and that it has functions other than action as a conduit for information. However, we and that Committee would be strengthened if we recognised the reality of the security services as they are today. We should incorporate them in the Bill in a proper sense, not in the slightly neurotic sense revealed by the Bill's current wording.

Mr. Mike O'Brien: I agree with much that was said by the hon. Member for Aldridge-Brownhills

(Mr. Shepherd) and my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher). I had the privilege to be a member of the Select Committee on Home Affairs when, in 1992, for the first time, the Committee decided to go and see the then director-general of MI5 and thereby started the process of opening up those issues. Many other Members of Parliament, especially the hon. Member for Aldridge-Brownhills, have played a far more substantial role in that process than I have ever played.
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It is my view and that of my right hon. Friend the Home Secretary and many members of the Government that much can be done more openly with the various security services—the Secret Intelligence Service, the Security Service, and the Government communications headquarters—to ensure that we have a more accountable intelligence operation. However, I do not agree that the Bill and the at-a-stroke approach that the hon. Gentleman advocates are the way to do that.
Over recent years we have been feeling our way towards more openness. The various security services have taken the view that they want to be more open, and they have moved quite a long way in that direction. No doubt we are only part way through the process, and in years to come we will move further.
The hon. Member for Aldridge-Brownhills says that the words "national security" are heavy words. Indeed, they are. This country has been subject to bombing and terrorism, and it has had a great need for a very effective intelligence service to protect our national security. It is right, therefore, that we treat with great respect the work that is done by our national security services.
I take this opportunity to pay tribute, which I am sure the House would echo, to the work done by the security services in dealing with Northern Irish terrorism in particular, but also terrorism from other parts of the world, to which our country has been subjected.
For the sake of my family and the families of all my constituents and others in this country, I want to be sure that our security services are able to do the work that we have asked them to do. It is extremely sensitive and difficult work, and it is right that in that context, there has always been a consensus in the House that we should treat with great care any intrusion into the operational activities of our security services.
I am grateful for the support of the then Conservative Front-Bench spokesman, the hon. Member for Ryedale (Mr. Greenway), who said when we discussed clause 21 in Committee that the Opposition
also agree with the Minister and the Government that clause 21 should be an absolute exemption.—[Official Report, Standing Committee B, 20 January 2000; c. 211.]
We propose to keep it as such.

Mr. Fisher: I am grateful to my hon. Friend. He says, rightly, that the Government and he, during his career in the House from 1992, have been involved in creating greater openness. Everyone welcomes that, and when he moved the amendment, the hon. Member for Aldridge-Brownhills (Mr. Shepherd) recognised the big shift that has taken place. However, my hon. Friend seems to be sliding into the misunderstanding that has bedevilled debate on the Bill in Committee and now on Report, confusing greater openness with freedom of information.
The Government have been much more open in this area, as were the previous Government. That is welcome, but it is quite different from what we are doing through the Bill—that is, establishing rights to access to information. Openness and freedom of information are two completely separate matters, and my hon. Friend is making the mistake of answering one with the other.

Mr. O'Brien: I certainly do not mean to make a mistake, and I am not sure that I have done so.
As clause 76 makes clear, there is nothing in the Bill that requires secrecy. There is nothing in any clause that will require the security services or any other organisation to keep information confidential that they could put into the public arena.
My hon. Friend says that he seeks to establish rights for members of the public, some of whom may be genuine and some of whom may bear our country ill will, to obtain information about the security services. I would approach that area with a great deal of caution. I do not think that there is sufficient caution in the amendments. Let me set out the reasons for that.

Mr. Oliver Heald: The Minister mentioned the Opposition's view. I wish simply to place on record that we retain that view.

Mr. O'Brien: I am grateful to the hon. Gentleman for confirming that at least the Front-Bench Members, and probably the majority of hon. Members, believe that we should allow the security services to do the job for which we pay them and that they do so well.
Some protection and, indeed, secrecy is necessary to retain and foster the exchange of information that underpins the intelligence effort. Clause 21 removes from the scope of the Bill all the information supplied by or relating to the work of the agencies listed in subsection (3).
It has been suggested that it is highly unlikely that information on security matters would be disclosed because of the way in which some of the exemptions operate. However, the amendments would encourage applicants to believe that such information would be disclosed. In practice, that expectation would be unreasonable, given the nature of the information. We do not wish to feed such expectations.
The amendments would significantly weaken the protection in the Bill for information supplied by or relating to the work of the security and intelligence services. I ask the House to reject the amendments on that basis.
Amendments Nos. 93 to 95 would change the operation of clause 22. Amendments Nos. 93 and 94 would limit exemption to information that did not fall within the scope of clause 21, but the disclosure of which would or would be likely to prejudice national security. Amendments Nos. 95 and 96 would remove the certification process from clauses 21 and 22. However, there are good reasons for the way in which the clause is drafted. The amendments would negate them.
We do not believe that a single omnibus harm test, which amendments Nos. 93 and 94 propose, is appropriate for all exemptions. We must frame the exemption to fit

the information and thus properly protect the public interest. I am sure that the hon. Member for Aldridge-Brownhills agrees that unless the public interest demands its disclosure, such information should not be disclosed if its retention is required to safeguard national security. The clause ensures that that is the case.
The exemption applies only when it is required; the test is of necessity, not desirability. The clause is drafted in similar terms to section 28 of the Data Protection Act 1998. The two provisions have the same purpose. It is therefore sensible for them to be drafted in similar language. Any difference in approach between the provisions could lead to them being interpreted differently. Clearly, that is not the intention. Government policy is clear on the sensitive subject that we are discussing. Any move from the existing formulation would suggest that the Government intended the provision to be interpreted differently. The Government will not accept any amendment that would risk reducing the protection.
Let us consider evidential certificates. That information is extremely sensitive, and access to it must necessarily be restricted to the smallest number of people possible. Disclosure in the course of enforcing freedom of information must be to the extent necessary to ensure that the exemption is not being abused, and no further.
In that unique instance, it is not appropriate for the Information Commissioner to have a role in assessing whether the exemption applies. Without any disrespect to the Information Commissioner or her staff, disclosure to her of such sensitive material is not appropriate. For example, the material requested might be a small piece of a jigsaw. Determining the seriousness, importance or sensitivity may require the Information Commissioner to know the whole context. That of itself would be undesirable. Furthermore, such disclosure would not be necessary to ensure that the exemption was not abused.
First, the certification procedure would restrict the power to sign such a certificate to a Cabinet Minister, the Attorney-General, the Attorney-General for Northern Ireland or the Advocate-General for Scotland. A certificate could be signed only at the highest level. Furthermore and crucially, it is important to be clear that those certificates would not operate as ministerial vetoes. The certificates that may be issued under clause 21(2) and clause 22(3) would be nothing more than evidential certificates. The Minister would certify that the information was of the kind specified, not that it should or should not be secret, although that would bear on the eventual use of the certificate. The commissioner or the applicant could challenge the certificate in the tribunal, which would have the power to determine whether it was reasonably issued or, in the case of a certificate issued under clause 21, whether it related to the information of the kind specified. Therefore, that would not be a ministerial veto.
There are good grounds for formulating clauses 21 and 22 as they stand and for the existence of a procedure, with relevant safeguards, for certifying that the information falls within the clauses. However, that does not mean that the security services need secrecy where that is unnecessary. No doubt my hon. Friend the Member for Workington (Mr. Campbell-Savours), other members of the Committee that oversees the security services and others will introduce a procedure, as the years pass, under which they are able to be more open where that is


appropriate, but only where that is appropriate. It is not appropriate to make those changes at a stroke under the Bill. We need to ensure that we protect those who protect us at any difficult time—now as much as any other—when our national security could be threatened. We have a duty to them to do so just as they have a duty to us in the work that they carry out.

Mr. Shepherd: Well, I got an answer that could have been written 10, 12, 14 or 20 years ago. No one in the Chamber is trying to abuse the national security services. As I tried to suggest, the very words "national security" have a weighty presence. Think of this. I quote a letter from a former Under-Secretary of State for Social Security published in The Guardian on 24 September 1997. He confirmed the role of MI5 in connection with his Department's work:
Currently, the security service is involved in an audit of security procedures in the DSS as part of its publicly acknowledged role as principal adviser to government on protective security and practice. This involves the examination of the department's internal management and systems controls.
I knew that the Minister would go heavily on arms, on the war that we fight with terrorists and so on, but there are many functions in the remit of the security services.
In that instance, MI5 effectively carried out management consultancy for the DSS, but the results of that work, which presumably was no different in substance to that which would otherwise have been done by an outside consultancy, would have been exempt merely because they were produced by MI5 staff rather than the staff of KPMG. There is a blanket response every time that one tries to talk about what should be accessible under the terms of a freedom of information Act. We get the solemn and correct intoning of reliance on a service that virtually no one in the Chamber knows anything about. I know almost nothing about the security services.
Over the years in which I have tried to advance some of the arguments to bring the security services in from the cold, if that is not a Jeffrey Archer title—[HON. MEMBERS: "No."] No indeed. One of the arguments is that this is a question of confidence for the House. We respect those who protect us, but we know that because of its remit, which we have discussed on the Floor of the House, the service has been concerned with all manner of things.
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The service has a long history, which is relevant to the Bill. The Bill almost suggests that someone could say, "If I want to exclude a piece of information, I can ask the security services to pass it across my desk". Under the Bill as it is now drafted, an umbrella of absolute exclusion would then be erected.
I thought that, in presenting freedom of information proposals, the Government were recognising that, although much was already open, we needed such measures as harm tests. Whether the threshold should be higher or lower is not the point at issue. We are saying that some of the great organisations of state—the police, the armed forces, the national health service and organisations whose members rescue people on the roads—should be excluded because of the phrase "national security".
We know the background to some of the stories. The Minister will have observed my assiduity in not going into certain horror stories with which I am acquainted,

whether or not they are true. I am thinking of Greenham common, and incidents involving the Campaign for Nuclear Disarmament. We learn that the Home Secretary himself, no less, was on a list that included the Secretary of State for Northern Island. However, I make nothing of that.
That was yesterday; we now look forward to tomorrow. This is not an attempt to undermine any aspect of the proper and legitimate defences of this country, which are a responsibility of Executive Government, and a very solemn one. I recognise and respect that, but I am not happy about a blanket ruling. What if there is a rogue element? Under the Bill as it stands, if the Secretary of State for Social Security's friend from the security services passes a piece of paper across the desk, and if it relates to something about which the Secretary of State does not want to know, that will be subject to a total exclusion. This is what is really behind the measure.
I understand why the Minister responded as he did. He read a brief that has been read many times here—but there were moments when I thought that, if my memory had been better, I could have joined him and we could have performed as a duo. The same thing often applies to our arguments about freedom of information, and our arguments about the security services, which I know will continue. In many instances the employees of the security services are brave and bonny people, but they should never be out of sight of those who are commissioned and paid for by the state, and are loyal citizens of that state—indeed, fellow citizens.
That is what this is about. It is not about any of the big things such as bombs and sensitivities about Northern Ireland; it is about the mundane, common things that affect every Department that serves this nation of ours.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24

DEFENCE

Mr. David Heath: I beg to move amendment No. 15, in page 13, line 13, after "to,", insert "substantially".

Mr. Deputy Speaker (Mr. Michael Lord): With this it will be convenient to discuss the following amendments: No. 16, in page 13, line 21, after "to,", insert "substantially".
No. 17, in clause 25, page 13, line 24, after "to" insert "substantially".
No. 18, in page 13, line 41, after "to,", insert "substantially".
No. 19, in clause 26, page 14, line 18, after "to" insert "substantially".
No. 20, in page 14, line 26, after "to,", insert "substantially".
No. 21, in clause 27, page 14, line 29, after "to" insert "substantially".
No. 22, in page 14, line 35, after "to,", insert "substantially".
No. 39, in clause 28, page 15, line 4, at end insert—
'and if its disclosure under this Act would, or would be likely to, prejudice any of those purposes'.
No. 23, in clause 29, page 16, line 10, after "to,", insert "substantially".
No. 24, in page 17, line 10, after "to,", insert "substantially".
No. 25, in clause 31, page 18, line 4, after "to,", insert "substantially".
No. 26, in page 18, line 9, after "to,", insert "substantially".

Mr. Heath: Amendment No. 15 stands in my name and in the names of an array of Members of the progressive faction.
All but one of the amendments deal with the same notion, while amendment No. 39 deals with a separate notion, which I intend to discuss separately. If I do so reasonably briefly, that does not mean that I am undermining the importance of the amendments; it simply means that I believe that the House wants to reach a conclusion on the Bill at some stage. Moreover, many of the arguments were dealt with at length in Committee. It is a shame that the hon. Member for Ryedale (Mr. Greenway) is not present, because he was very much involved in our debate in Committee and expressed clear views.
The amendment seeks to qualify the prejudice test by inserting the adverb "substantially". That, we think, is a fairly important aspect of making legislation effective, and not over-prescriptive or over-restrictive.
In Committee, we had a long and rather fruitless debate—which I am sure the Minister will recall—on whether the word "harm" was synonymous with the word "prejudice" and whether the words differ in connotation. Ultimately, we had to accept that the Minister prefers the word "prejudice" simply because he prefers it, and we left it at that. We should debate that point again today, but should consider whether there needs to be a slightly higher threshold.
Hon. Members will recall that the White Paper was very explicit on the issue, proposing a test of substantial harm. It was critical of the code for not providing a threshold of substantial harm. Although I do not know whether prejudice is a higher test than harm, the White Paper proposed that the Bill should be
set in specific and demanding terms.
The background papers to the White Paper, which were very instructive on the issue, noted that substantial harm
would clearly be more stringent (and so provide greater openness) than the Code of Practice on Access to Government Information (which normally exempts on the basis of simple "harm" or "prejudice") and would be closer to the "real damage" test of PII. Practical experience of applying a "real damage" test in litigation indicates that it results in a substantial reduction in the volume of material which would be withheld.
Therefore, from discussions both preceding and following publication of the White Paper, we have had a clear indication that a test of real damage should be used in disclosing information. The Home Secretary was

clearly similarly minded. In his statement on the draft Bill, he expressed his preference for the word "prejudice" and said that, in practice, the prejudice has to be
real, actual or of "substance".—[Official Report, 24 May 1999; Vol. 332, c. 22]
That is the crucial point. The Minister contends that that is the meaning of prejudice and that it needs no further qualification. He also contends that, even if prejudice does not mean that, that is how—because of Pepper v. Hart, which the Home Secretary had in mind—it would be interpreted.
The difficulty with that construction is that, as Pepper v. Hart makes clear, a Minister's comments would be taken into account only if the provision were
ambiguous or obscure or the literal meaning
would lead "to an absurdity". Even then, the Minister's comments would be taken into account only if they addressed the issue. However, it is difficult to imagine circumstances in which the courts would test the ambiguity in the word "prejudice". If they were to do so, would they take into account the Home Secretary's gloss on the word? I suspect that they would not. The Bill contains nothing that equates with the Home Secretary's test of
real, actual or of "substance".
Like other hon. Members, I think that, if the Bill is to do its job properly and we are to avoid exemptions that cover much wider classes of information than need to be covered, we need that type of threshold.
Amendment No. 39 would amend clause 28, which provides a blanket exemption protecting all information on investigations by police and regulators, even if disclosure could not harm legal proceedings. The list of regulators is quite broad. It includes not only police, but—as the Minister advised us, for which we are grateful—the Health and Safety Executive, environmental health officers, trading standards officers, fire authorities, the drinking water inspectorate, the Environment Agency, the Director General of Water Services, the Maritime and Coastguard Agency, the Civil Aviation Authority, the Inland Revenue, Customs and Excise, the Crown Prosecution Service, the Benefits Agency, the Department of Trade and Industry, the Ministry of Agriculture, Fisheries and Food, the Housing Corporation, the National Criminal Intelligence Service and the Serious Fraud Office. Thus a wide range of bodies are covered.
That extraordinary blanket exemption does not take into account all the factors that would justify revealing information. It does not apply the harm test which we might imagine would be inherent in any such provision. It simply says that all information held by those bodies in that context would be exempt.
Amendment No. 39 would allow the withholding of such information only if disclosure would prejudice the purpose for which it is held. That is not unreasonable. The reason for withholding information should be that its disclosure would disadvantage the investigating authority or the police in the execution of their duties. That is not a problem in other countries' freedom of information legislation.
There is a genuine concern about the circumstances in which material would be exempt. A local authority might refuse to release information on investigations into children's homes or even to admit to there having been


an investigation. That is not a healthy situation. That is setting aside the effect on the police. The Macpherson report, which has been given careful attention in the House, says explicitly that there should be no class exemption for the police. It argues that re-establishing public confidence in the police requires
a vigorous pursuit of openness and accountability across Police Services.
The report goes on to say that
we consider it an important matter of principle that the Police Services should be open to the full provisions of a Freedom of Information Act. We see no logical grounds for a class exemption for the police in any area.
There could be no more explicit endorsement of my case. That view is shared by the Law Society, which has said that it fully supports the amendment.
The argument that the amendment would prevent the police or regulatory authorities from doing their job effectively is untenable. Even if clause 28 were changed much more radically than the amendment would change it, there would always be clause 29, which clearly says:
Information which is not exempt information by virtue of section 28 is exempt information if its disclosure under this Act would, or would be likely to, prejudice—

(a) the prevention or detection of crime,
(b) the apprehension or prosecution of offenders,
(c) the administration of justice

and a list of other roles of regulatory authorities.
This is a serious group of amendments. The Minister must explain why he has chosen to reduce the threshold. Amendment No. 39 is crucial. He must also explain why there should be a blanket exemption for that critical area of public service. I shall listen carefully to the Minister. I suspect that the House will wish to give an opinion on both matters.

Dr. Tony Wright: I shall say but a word on the amendments. The Minister argued against an omnibus harm test. We have heard that a lot during debates on these issues over the years. If we accept the logic of that argument, we could also say that there are areas in which it makes sense to say "substantial" and others in which it makes sense not to. That is the point about not having an omnibus test. That was precisely the argument used by the Select Committee on Public Administration when it examined the draft Bill. The Minister has argued that there is no need for an omnibus test. According to his argument, it should be possible to have a substantial test for those matters for which such a test would make sense. I am disappointed that the Government have not been minded to consider that.
9.15 pm
It is getting late and we are all tired; that inevitably influences our debate. I do not want to detain anyone, so I shall confine myself to amendment No. 39 to clause 28—the clause that deals with investigations. If the House were in more vigorous mood, it would be mightily exercised by this part of the Bill.
There is no question but that the blanket exemption for investigations has caused enormous disquiet among consumer organisations and those concerned with public safety. There seems no reason at all for it. I can only believe that, because the Government want to ensure that

the police and other organisations are covered, they have decided to extend the provision to all investigatory bodies. The effect will be to place all investigations carried out by them into the exempt category.
That is quite unnecessary. Jenny Bacon of the Health and Safety Commission expressed the same view in evidence to the Select Committee. She said that the commission's work did not need to be in that category, and that it needed no more than a prejudice test to safeguard those matters that needed to be safeguarded.
I wish that the Government had considered the matter more closely. The preposterous possibility arises that a trading standards inspector might visit a premises and give it a clean bill of health, but that that information could not be disclosed. That would be because, under the Bill, he would represent an investigatory body that has the power to conduct an investigation. That is a silly and unnecessary conclusion, and the clause should be qualified in the way suggested by the amendment.
If I were in a more vigorous mood, I would talk at greater length about these matters. However, I place on record my enormous disquiet about this proposal.

Mr. White: The Government believe that open government consists of them releasing information under clause 13, but nothing demonstrates more clearly than clause 28 their unwillingness to accept that citizens have a right to demand that information for themselves. The Bill is supposed to ensure freedom of information, so it should give citizens the right to have access to the information that they want, once any prosecution is complete and the information has been released from sub judice requirements. The test should revolve around prejudice to an investigation, and I urge my hon. Friend the Minister to consider the amendment again.

Mr. Mike O'Brien: Amendments Nos. 15 to 26 would all have a similar effect, so it is sensible for me to deal with them separately from amendment No. 39, which deals with a slightly different matter.
I well remember that the hon. Member for Somerton and Frome (Mr. Heath) and other hon. Members in the Committee discussed at some length—almost to the point of angels dancing on pins—the various meanings of words and how those meanings could be defined. I shall not burden the House with a dissertation on why we have chosen one word in preference to two.
However, my hon. Friend the Member for Cannock Chase (Dr. Wright) Chairs the Select Committee on Public Administration and I refer those hon. Members interested in this matter to the Committee's very well argued report on the draft Bill, volume 1 of which looked in some detail at the word "prejudice" and other harm tests in UK law. It is a valuable reference work on some of these issues—indeed, I used it in Committee.
Amendments Nos. 15 to 26 would change the harm test in the exemptions for defence, international relations, relations within the UK, the economy, law enforcement and audit functions, which at present include a test of prejudice, to include a test of "substantial prejudice".
As I have said in other contexts, it is difficult to place a specific meaning on the word "substantial" and to determine what practical effect this would have in the Bill. For example, if the term means "a great deal of" or "a lot of", the amendments would mean that information that


was deemed damaging to a lesser extent—that would involve some lesser prejudice—would have to be disclosed without the need to show that the public interest required that such damage be caused. That would not properly balance the public interest in disclosure with that of maintaining the exemption.
In addition, the qualification of the term is unnecessary. The Government have consistently stated their view that prejudice means prejudice that is
actual, real or of substance.
Prejudice is an ordinary word that is found without qualification in many pieces of legislation. It is a word that is familiar to the courts as well as to others involved with the day-to-day interpreting of legislation.
Moreover, we must not forget that the judgment of whether disclosure of information would be prejudicial to a given interest will not merely rest with the authorities. The commissioner and the tribunal will be required to consider individual cases that may be referred to them and may overturn the decision of the authority where they consider that the test is not met.
Amendment No. 39 would convert clause 28(1) into a prejudice-tested exemption. That would mean that the information held for the purposes of investigations into offences and any criminal proceedings that may flow from those would be exempt only where disclosure would be prejudicial to the investigation or proceedings.
The Government believe that the removal of a class exemption for such information would undermine the effectiveness of both the police and the prosecution services and that it is vital to retain the protection of a class exemption for that category of information.
The amendment would result in information about criminal investigations being released in advance of court proceedings, which would have a damaging effect on the case. The Government believe that it is essential to ensure that criminal proceedings are not jeopardised by the premature disclosure of information and that the criminal courts are preserved as the sole forum for determining guilt. Information which is, or may be, disclosed in court will continue to be placed in the public domain through that process.
The right hon. and hon. Members who tabled the amendment may say that surely a prejudice test would meet the concerns. We do not think so. First, in areas of criminal activity and individual liberty, one needs to be very wary of being too quick to assume that no prejudice would be caused. Introducing a prejudice test would lead to a search for demonstrable prejudice, with a real risk of injustices being caused or criminal activity being facilitated where such prejudice cannot immediately be pointed to.
Furthermore, it is right that the law enforcement agencies should not be subject to the commissioner's view of what would constitute prejudice in this field. The commissioner cannot be an expert in law and order and so must defer to the views of those agencies in this regard. Thus, to introduce a prejudice test would achieve little.
However, the clause as drafted will not prevent the disclosure of information about criminal investigations

where it is in the public interest for such disclosures to be made by virtue of clause 13. Public authorities will release such information when the public interest in releasing it outweighs the public interest in maintaining the exemption. Therefore, in our amendments, we have met some, if not all, the concerns of hon. Members. I should also make it clear that general information about the conduct of investigations, as opposed to the information relating to particular investigations, is covered not by the class exemption but by the prejudice tested exemption in clause 29.
It is essential that, for information held for the purposes of investigations or criminal proceedings, we retain the protection afforded by a class exemption. It is not appropriate to subject this category of information to a prejudice test, and the Government amendments to clause 13 will in any case ensure that, where there is an overriding public interest in the disclosure of the information, it will be released.
I therefore ask the hon. Member for Somerton and Frome to withdraw the amendment.

Mr. David Heath: The Minister has simply repeated what he previously said about prejudice. I expected nothing else from him—he is being admirably consistent, and so am I. I still do not believe that the threshold is sufficiently high. We shall have to agree to differ, and see who rallies to our standards.
We have a very serious disagreement with the Government on amendment No. 39. I do not understand why the Minister suggests that it would lead to premature disclosure of information to the detriment of judicial proceedings. Clause 29 deals specifically with all the areas that would no longer be covered by the exemptions in clause 28. There is no circumstance in which that would not catch information that would prejudice, or would be likely to prejudice, the administration of justice, the prevention or detection of crime, or anything else about which the Minister is concerned. We share those concerns, of course, and would not have tabled an amendment if we believed that it was likely to do that.
We will seek the opinion of the House on this matter. If the opportunity arises, we should also like to seek the opinion of the House on amendment No. 39.

Question put, That the amendment be made:—

The House divided: Ayes 37, Noes 336.

Division No. 146]
[9.27 pm


AYES


Allan, Richard
Harvey, Nick


Ashdown, Rt Hon Paddy
Heath, David (Somerton & Frome)


Ballard, Jackie
Hughes, Simon (Southwark N)



Keetch, Paul


Bell, Martin (Tatton)
Kennedy, Rt Hon Charles (Ross Skye & Inverness W)


Brake, Tom



Brand, Dr Peter
Kirkwood, Archy


Breed, Colin
Llwyd, Elfyn


Burstow, Paul
Maclennan, Rt Hon Robert


Campbell, Rt Hon Menzies (NE Fife)
Michie, Mrs Ray (Argyll & Bute)



Moore, Michael


Cotter, Brian
Oaten, Mark



Öpik, Lembit


Davis, Rt Hon David (Haltemprice)
Rendel, David


Foster, Don (Bath)
Russell, Bob (Colchester)


George, Andrew (St Ives)
Sanders, Adrian


Harris, Dr Evan
Shepherd, Richard






Smith, Sir Robert (W Ab'd'ns)
Willis, Phil


Stunell, Andrew



Taylor, Matthew (Truro)



Tonge, Dr Jenny
Tellers for the Ayes:


Tyler, Paul
Mr. Ronnie Fearn and


Webb, Steve
Mr. John Burnett.




NOES


Ainger, Nick
Corston, Jean


Ainsworth, Robert (Cov'try NE)
Cousins, Jim


Alexander, Douglas
Cranston, Ross


Anderson, Donald (Swansea E)
Cryer, John (Hornchurch)


Anderson, Janet (Rossendale)
Cummings, John


Armstrong, Rt Hon Ms Hilary
Cunningham, Rt Hon Dr Jack (Copeland)


Ashton, Joe



Atherton, Ms Candy
Cunningham, Jim (Cov'try S)


Atkins, Charlotte
Dalyell, Tam


Austin, John
Darling, Rt Hon Alistair


Barnes, Harry
Darvill, Keith


Barron, Kevin
Davey, Valerie (Bristol W)


Bayley, Hugh
Davidson, Ian


Beard, Nigel
Davies, Rt Hon Denzil (Llanelli)


Beckett, Rt Hon Mrs Margaret
Davies, Geraint (Croydon C)


Begg, Miss Anne
Dawson, Hilton


Beggs, Roy
Dean, Mrs Janet


Benn, Hilary (Leeds C)
Denham, John


Bennett, Andrew F
Dismore, Andrew


Bermingham, Gerald
Dobbin, Jim


Berry, Roger
Donaldson, Jeffrey


Best, Harold
Donohoe, Brian H


Betts, Clive
Doran, Frank


Blackman, Liz
Eagle, Angela (Wallasey)


Blears, Ms Hazel
Eagle, Maria (L'pool Garston)


Blizzard, Bob
Edwards, Huw


Boateng, Rt Hon Paul
Efford, Clive


Bradley, Keith (Withington)
Ellman, Mrs Louise


Bradley, Peter (The Wrekin)
Ennis, Jeff


Bradshaw, Ben
Field, Rt Hon Frank


Brinton, Mrs Helen
Fitzpatrick, Jim


Brown, Rt Hon Nick (Newcastle E)
Fitzsimons, Lorna


Brown, Russell (Dumfries)
Flint, Caroline


Browne, Desmond
Follett, Barbara


Buck, Ms Karen
Foster, Rt Hon Derek


Burden, Richard
Foster, Michael Jabez (Hastings)


Burgon, Colin
Foster, Michael J (Worcester)


Butler, Mrs Christine
Foulkes, George


Byers, Rt Hon Stephen
Galloway, George


Caborn, Rt Hon Richard
Gapes, Mike


Campbell, Alan (Tynemouth)
Gardiner, Barry


Campbell, Mrs Anne (C'bridge)
George, Bruce (Walsall S)


Campbell, Ronnie (Blyth V)
Gerrard, Neil


Campbell-Savours, Dale
Gilroy, Mrs Linda


Cann, Jamie
Godman, Dr Norman A


Caplin, Ivor
Godsiff, Roger


Casale, Roger
Goggins, Paul


Caton, Martin
Golding, Mrs Llin


Cawsey, Ian
Gordon, Mrs Eileen


Chapman, Ben (Wirral S)
Graham, Thomas


Chaytor, David
Griffiths, Jane (Reading E)


Clapham, Michael
Griffiths, Nigel (Edinburgh S)


Clark, Rt Hon Dr David (S Shields)
Griffiths, Win (Bridgend)


Clark, Dr Lynda (Edinburgh Pentlands)
Grocott, Bruce



Grogan, John


Clark, Paul (Gillingham)
Gunnell, John


Clarke, Charles (Norwich S)
Hall, Mike (Weaver Vale)


Clarke, Eric (Midlothian)
Hall, Patrick (Bedford)


Clarke, Tony (Northampton S)
Hamilton, Fabian (Leeds NE)


Clelland, David
Hanson, David


Coaker, Vernon
Heal, Mrs Sylvia


Coffey, Ms Ann
Healey, John


Cohen, Harry
Henderson, Doug (Newcastle N)


Coleman, Iain
Hepburn, Stephen


Colman, Tony
Heppell, John


Connarty, Michael
Hesford, Stephen


Cook, Frank (Stockton N)
Hill, Keith


Cooper, Yvette
Hinchliffe, David





Hodge, Ms Margaret
Michie, Bill (Shef'ld Heeley)


Hoey, Kate
Milburn, Rt Hon Alan


Hood, Jimmy
Miller, Andrew


Hoon, Rt Hon Geoffrey
Moffatt, Laura


Hope, Phil
Moonie, Dr Lewis


Hopkins, Kelvin
Moran, Ms Margaret


Howarth, Alan (Newport E)
Morley, Elliot


Howarth, George (Knowsley N)
Morris, Rt Hon Ms Estelle (B'ham Yardley)


Howells, Dr Kim



Hoyle, Lindsay
Mountford, Kali


Hughes, Kevin (Doncaster N)
Mullin, Chris


Humble, Mrs Joan
Murphy, Denis (Wansbeck)


Hurst, Alan
Murphy, Jim (Eastwood)


Hutton, John
Murphy, Rt Hon Paul (Torfaen)


Iddon, Dr Brian
Naysmith, Dr Doug


Illsley, Eric
Norris, Dan


Ingram, Rt Hon Adam
O'Brien, Bill (Normanton)


Jackson, Ms Glenda (Hampstead)
O'Brien, Mike (N Warks)


Jackson, Helen (Hillsborough)
Olner, Bill


Jamieson, David
O'Neill, Martin


Jenkins, Brian
Organ, Mrs Diana


Johnson, Alan (Hull W & Hessle)
Osborne, Ms Sandra


Johnson, Miss Melanie (Welwyn Hatfield)
Palmer, Dr Nick



Pearson, Ian


Jones, Rt Hon Barry (Alyn)
Pendry, Tom


Jones, Helen (Warrington N)
Perham, Ms Linda


Jones, Jon Owen (Cardiff C)
Pickthall, Colin


Jones, Martyn (Clwyd S)
Pike, Peter L


Jowell, Rt Hon Ms Tessa
Plaskitt, James


Kaufman, Rt Hon Gerald
Pollard, Kerry


Keeble, Ms Sally
Pond, Chris


Keen, Alan (Feltham & Heston)
Pope, Greg


Keen, Ann (Brentford & Isleworth)
Pound, Stephen


Kemp, Fraser
Powell, Sir Raymond


Kennedy, Jane (Wavertree)
Prentice, Ms Bridget (Lewisham E)


Khabra, Piara S
Prentice, Gordon (Pendle)


Kidney, David
Prescott, Rt Hon John


Kilfoyle, Peter
Primarolo, Dawn


King, Andy (Rugby & Kenilworth)
Prosser, Gwyn


King, Ms Oona (Bethnal Green)
Purchase, Ken


Ladyman, Dr Stephen
Quinn, Lawrie


Lawrence, Mrs Jackie
Radice, Rt Hon Giles


Laxton, Bob
Rammell, Bill


Lepper, David
Raynsford, Nick


Leslie, Christopher
Reed, Andrew (Loughborough)


Levitt, Tom
Reid, Rt Hon Dr John (Hamilton N)


Lewis, Ivan (Bury S)
Roche, Mrs Barbara


Lewis, Terry (Worsley)
Rogers, Allan


Liddell, Rt Hon Mrs Helen
Rooker, Rt Hon Jeff


Linton, Martin
Rooney, Terry


Lock, David
Ross, Ernie (Dundee W)


Love, Andrew
Rowlands, Ted


McAvoy, Thomas
Roy, Frank


McCabe, Steve
Ruane, Chris


McDonagh, Siobhain
Russell, Ms Christine (Chester)


Macdonald, Calum
Ryan, Ms Joan


McFall, John
Salter, Martin


McGuire, Mrs Anne
Sarwar, Mohammad


McIsaac, Shona
Savidge, Malcolm


McKenna, Mrs Rosemary
Sawford, Phil


McNulty, Tony
Sedgemore, Brian


MacShane, Denis
Shaw, Jonathan


Mactaggart, Fiona
Shipley, Ms Debra


McWalter, Tony
Short, Rt Hon Clare


McWilliam, John
Simpson, Alan (Nottingham S)


Mahon, Mrs Alice
Singh, Marsha


Mallaber, Judy
Skinner, Dennis


Marsden, Gordon (Blackpool S)
Smith, Rt Hon Andrew (Oxford E)


Marsden, Paul (Shrewsbury)
Smith, Angela (Basildon)


Marshall, David (Shettleston)
Smith, Rt Hon Chris (Islington S)


Marshall, Jim (Leicester S)
Smith, Miss Geraldine (Morecambe & Lunesdale)


Marshall-Andrews, Robert



Martlew, Eric
Smith, Jacqui (Redditch)


Maxton, John
Smith, John (Glamorgan)


Meacher, Rt Hon Michael
Smith, Llew (Blaenau Gwent)


Merron, Gillian
Snape, Peter






Soley, Clive
Turner, Dennis (Wolverh'ton SE)


Southworth, Ms Helen
Turner, Dr George (NW Norfolk)


Spellar, John
Turner, Neil (Wigan)


Squire, Ms Rachel
Twigg, Derek (Halton)


Starkey, Dr Phyllis
Twigg, Stephen (Enfield)


Steinberg, Gerry
Tynan, Bill


Stevenson, George
Walley, Ms Joan


Stewart, David (Inverness E)
Ward, Ms Claire


Stewart, Ian (Eccles)
Wareing, Robert N


Stinchcombe, Paul
Watts, David


Stoate, Dr Howard
White, Brian


Strang, Rt Hon Dr Gavin
Whitehead, Dr Alan


Straw, Rt Hon Jack
Wicks, Malcolm


Stringer, Graham
Williams, Rt Hon Alan (Swansea W)


Stuart, Ms Gisela



Taylor, Rt Hon Mrs Ann (Dewsbury)
Williams, Alan W (E Carmarthen)



Wills, Michael



Wilson, Brian


Taylor, Ms Dari (Stockton S)
Winnick, David


Taylor, David (NW Leics)
Winterton, Ms Rosie (Doncaster C)


Temple-Morris, Peter
Wood, Mike


Thomas, Gareth (Clwyd W)
Woodward, Shaun


Thomas, Gareth R (Harrow W)
Woolas, Phil


Thompson, William
Worthington, Tony


Timms, Stephen
Wright, Anthony D (Gt Yarmouth)


Tipping, Paddy
Wyatt, Derek


Todd, Mark



Touhig, Don
Tellers for the Noes:


Trickett, Jon
Mr. Gerry Sutcliffe and


Truswell, Paul
Mr. Jim Dowd.

Question accordingly negatived

Clause 28

INVESTIGATIONS AND PROCEEDINGS CONDUCTED BY PUBLIC AUTHORITIES

Amendment proposed: No. 39, in page 15, line 4, at end insert—
'and if its disclosure under this Act would, or would be likely to, prejudice any of those purposes'.—[Mr. Simon Hughes.]

Question put, That the amendment be made:—

The House divided: Ayes 61, Noes 321.

Division No. 148]
[9.51 pm


AYES


Ainsworth, Peter (E Surrey)
Brady, Graham


Allan, Richard
Brand, Dr Peter


Amess, David
Brazier, Julian



Breed, Colin


Ancram, Rt Hon Michael
Browning, Mrs Angela


Arbuthnot, Rt Hon James
Bruce, Ian (S Dorset)


Ashdown, Rt Hon Paddy
Burnett, John


Atkinson, Peter (Hexham)
Burstow, Paul


Baldry, Tony
Butterfill, John


Ballard, Jackie
Campbell, Rt Hon Menzies (NE Fife)


Beggs, Roy



Bell, Martin (Tatton)
Campbell, Ronnie (Blyth V)


Bercow, John
Chope, Christopher



Clappison, James


Beresford, Sir Paul
Clark, Rt Hon Dr David (S Shields)


Blunt, Crispin
Clifton-Brown, Geoffrey


Body, Sir Richard
Clwyd, Ann


Boswell, Tim
Collins, Tim


Bottomley, Peter (Worthing W)
Cook, Frank (Stockton N)


Bottomley, Rt Hon Mrs Virginia
Corbyn, Jeremy






Cotter, Brian
McIntosh, Miss Anne


Cousins, Jim
MacKay, Rt Hon Andrew


Cran, James
Maclean, Rt Hon David


Dalyell, Tam
Maclennan, Rt Hon Robert


Davies, Quentin (Grantham)
McLoughlin, Patrick


Davis, Rt Hon David (Haltemprice)
McWilliam, John


Day, Stephen
Madel, Sir David


Donaldson, Jeffrey
Mahon, Mrs Alice


Dorrell, Rt Hon Stephen
Malins, Humfrey


Duncan, Alan
Maples, John


Duncan Smith, Iain
Marshall, Jim (Leicester S)


Dunwoody, Mrs Gwyneth
Marshall-Andrews, Robert


Evans, Nigel
Mates, Michael


Fabricant, Michael
May, Mrs Theresa


Fallon, Michael
Michie, Bill (Shef'ld Heeley)


Fearn, Ronnie
Michie, Mrs Ray (Argyll & Bute)


Fisher, Mark
Moore, Michael


Flight, Howard
Morgan, Ms Julie (Cardiff N)



Moss, Malcolm


Forth, Rt Hon Eric
Nicholls, Patrick


Foster, Rt Hon Derek
Norman, Archie


Foster, Don (Bath)
Oaten, Mark


Fox, Dr Liam
O'Brien, Stephen (Eddisbury)


Fraser, Christopher
Öpik, Lembit


Gale, Roger
Ottaway, Richard


Garnier, Edward
Page, Richard


George, Andrew (St Ives)
Paice, James


Gerrard, Neil
Pickles, Eric


Gibb, Nick
Portillo, Rt Hon Michael


Gillan, Mrs Cheryl
Prentice, Gordon (Pendle)


Gorman, Mrs Teresa
Prior, David


Gray, James
Randall, John


Green, Damian
Redwood, Rt Hon John


Greenway, John
Rendel, David


Grieve, Dominic
Robathan, Andrew


Gummer, Rt Hon John
Robertson, Laurence


Hague, Rt Hon William
Roe, Mrs Marion (Broxbourne)


Hall, Patrick (Bedford)
Ruffley, David


Hamilton, Rt Hon Sir Archie
Russell, Bob (Colchester)


Hammond, Philip
St Aubyn, Nick


Harris, Dr Evan
Sanders, Adrian


Harvey, Nick
Sayeed, Jonathan


Hawkins, Nick
Shephard, Rt Hon Mrs Gillian


Hayes, John
Shepherd, Richard


Heald, Oliver
Simpson, Alan (Nottingham S)


Heath, David (Somerton & Frome)
Simpson, Keith (Mid-Norfolk)


Heseltine, Rt Hon Michael
Smith, Llew (Blaenau Gwent)


Hinchliffe, David
Smith, Sir Robert (W Ab'd'ns)


Hogg, Rt Hon Douglas
Soames, Nicholas


Hopkins, Kelvin
Spelman, Mrs Caroline


Horam, John
Spring, Richard


Howard, Rt Hon Michael
Stanley, Rt Hon Sir John


Hughes, Simon (Southwark N)
Steen, Anthony


Hunter, Andrew
Streeter, Gary


Jones, Jon Owen (Cardiff C)
Swayne, Desmond



Syms, Robert


Jones, Dr Lynne (Selly Oak)
Tapsell, Sir Peter


Keetch, Paul
Taylor, Ian (Esher & Walton)


Kennedy, Rt Hon Charles (Ross Skye & Inverness W)
Taylor, John M (Solihull)



Taylor, Matthew (Truro)


Key, Robert
Tonge, Dr Jenny


Kirkbride, Miss Julie
Tredinnick, David


Kirkwood, Archy
Trend, Michael


Laing, Mrs Eleanor
Tyler, Paul


Lait, Mrs Jacqui
Tyrie, Andrew


Lansley, Andrew
Viggers, Peter


Leigh, Edward
Walter, Robert


Letwin, Oliver
Waterson, Nigel


Lidington, David
Webb, Steve


Lloyd, Rt Hon Sir Peter (Fareham)
Wells, Bowen


Llwyd, Elfyn
Whitney, Sir Raymond


Loughton, Tim
Whittingdale, John


Luff, Peter
Williams, Mrs Betty (Conwy)


Lyell, Rt Hon Sir Nicholas
Willis, Phil


McDonnell, John
Winterton, Mrs Ann (Congleton)


MacGregor, Rt Hon John
Winterton, Nicholas (Macclesfield)





Wright, Dr Tony (Cannock)



Wyatt, Derek
Tellers for the Ayes:


Yeo, Tim
Mr. Andrew Stunell and


Young, Rt Hon Sir George
Mr. Tom Brake.




NOES


Ainger, Nick
Cunningham, Rt Hon Dr Jack (Copeland)


Ainsworth, Robert (Cov'try NE)



Alexander, Douglas
Cunningham, Jim (Cov'try S)


Anderson, Donald (Swansea E)
Darling, Rt Hon Alistair


Anderson, Janet (Rossendale)
Darvill, Keith


Armstrong, Rt Hon Ms Hilary
Davey, Valerie (Bristol W)


Ashton, Joe
Davidson, Ian


Atherton, Ms Candy
Davies, Rt Hon Denzil (Llanelli)


Atkins, Charlotte
Davies, Geraint (Croydon C)


Austin, John
Dawson, Hilton


Barnes, Harry
Dean, Mrs Janet


Barron, Kevin
Denham, John


Bayley, Hugh
Dismore, Andrew


Beard, Nigel
Dobbin, Jim


Beckett, Rt Hon Mrs Margaret
Donohoe, Brian H


Begg, Miss Anne
Doran, Frank


Benn, Hilary (Leeds C)
Eagle, Angela (Wallasey)


Bennett, Andrew F
Eagle, Maria (L'pool Garston)


Benton, Joe
Edwards, Huw


Bermingham, Gerald
Efford, Clive


Berry, Roger
Ellman, Mrs Louise


Best, Harold
Ennis, Jeff


Betts, Clive
Field, Rt Hon Frank


Blackman, Liz
Fitzpatrick, Jim


Blears, Ms Hazel
Fitzsimons, Lorna


Blizzard, Bob
Flint, Caroline


Blunkett, Rt Hon David
Follett, Barbara


Boateng, Rt Hon Paul
Foster, Michael Jabez (Hastings)


Bradley, Keith (Withington)
Foster, Michael J (Worcester)


Bradley, Peter (The Wrekin)
Foulkes, George


Bradshaw, Ben
Galloway, George


Brinton, Mrs Helen
Gapes, Mike


Brown, Rt Hon Nick (Newcastle E)
Gardiner, Barry


Brown, Russell (Dumfries)
George, Bruce (Walsall S)


Browne, Desmond
Gilroy, Mrs Linda


Buck, Ms Karen
Godman, Dr Norman A


Burden, Richard
Godsiff, Roger


Burgon, Colin
Goggins, Paul


Butler, Mrs Christine
Golding, Mrs Llin


Byers, Rt Hon Stephen
Gordon, Mrs Eileen


Caborn, Rt Hon Richard
Griffiths, Jane (Reading E)


Campbell, Alan (Tynemouth)
Griffiths, Nigel (Edinburgh S)


Campbell, Mrs Anne (C'bridge)
Griffiths, Win (Bridgend)


Campbell-Savours, Dale
Grocott, Bruce


Cann, Jamie
Grogan, John


Caplin, Ivor
Gunnell, John


Casale, Roger
Hain, Peter


Caton, Martin
Hall, Mike (Weaver Vale)


Cawsey, Ian
Hamilton, Fabian (Leeds NE)


Chapman, Ben (Wirral S)
Hanson, David


Chaytor, David
Heal, Mrs Sylvia


Clapham, Michael
Healey, John


Clark, Dr Lynda (Edinburgh Pentlands)
Henderson, Doug (Newcastle N)



Hepburn, Stephen


Clark, Paul (Gillingham)
Heppell, John


Clarke, Charles (Norwich S)
Hesford, Stephen


Clarke, Eric (Midlothian)
Hill, Keith


Clarke, Tony (Northampton S)
Hodge, Ms Margaret


Clelland, David
Hoey, Kate


Coaker, Vernon
Hood, Jimmy


Coffey, Ms Ann
Hoon, Rt Hon Geoffrey


Cohen, Harry
Hope, Phil


Coleman, Iain
Howarth, Alan (Newport E)


Colman, Tony
Howarth, George (Knowsley N)


Connarty, Michael
Howells, Dr Kim


Cooper, Yvette
Hoyle, Lindsay


Corston, Jean
Hughes, Kevin (Doncaster N)


Cranston, Ross
Humble, Mrs Joan


Cryer, John (Hornchurch)
Hurst, Alan


Cummings, John
Hutton, John






Iddon, Dr Brian
O'Neill, Martin


Illsley, Eric
Organ, Mrs Diana


Ingram, Rt Hon Adam
Osborne, Ms Sandra


Jackson, Ms Glenda (Hampstead)
Palmer, Dr Nick


Jackson, Helen (Hillsborough)
Pearson, Ian


Jamieson, David
Pendry, Tom


Jenkins, Brian
Perham, Ms Linda


Johnson, Alan (Hull W & Hessle)
Pickthall, Colin


Johnson, Miss Melanie (Welwyn Hatfield)
Pike, Peter L



Plaskitt, James


Jones, Rt Hon Barry (Alyn)
Pollard, Kerry


Jones, Helen (Warrington N)
Pond, Chris


Jones, Martyn (Clwyd S)
Pope, Greg


Jowell, Rt Hon Ms Tessa
Pound, Stephen


Kaufman, Rt Hon Gerald
Powell, Sir Raymond


Keeble, Ms Sally
Prentice, Ms Bridget (Lewisham E)


Keen, Alan (Feltham & Heston)
Prescott, Rt Hon John


Keen, Ann (Brentford & Isleworth)
Primarolo, Dawn


Kemp, Fraser
Prosser, Gwyn


Kennedy, Jane (Wavertree)
Purchase, Ken


Khabra, Piara S
Quinn, Lawrie


Kidney, David
Radice, Rt Hon Giles


Kilfoyle, Peter
Rammell, Bill


King, Andy (Rugby & Kenilworth)
Raynsford, Nick


King, Ms Oona (Bethnal Green)
Reed, Andrew (Loughborough)


Ladyman, Dr Stephen
Reid, Rt Hon Dr John (Hamilton N)


Lawrence, Mrs Jackie
Robinson, Geoffrey (Cov'try NW)


Laxton, Bob
Roche, Mrs Barbara


Lepper, David
Rooker, Rt Hon Jeff


Leslie, Christopher
Rooney, Terry


Levitt, Tom
Ross, Ernie (Dundee W)


Lewis, Ivan (Bury S)
Rowlands, Ted


Lewis, Terry (Worsley)
Roy, Frank


Liddell, Rt Hon Mrs Helen
Ruane, Chris


Linton, Martin
Russell, Ms Christine (Chester)


Lock, David
Ryan, Ms Joan


Love, Andrew
Salter, Martin


McAvoy, Thomas
Sarwar, Mohammad


McCabe, Steve
Savidge, Malcolm


McDonagh, Siobhain
Sawford, Phil


Macdonald, Calum
Sedgemore, Brian


McFall, John
Shaw, Jonathan


McGuire, Mrs Anne
Sheerman, Barry


McIsaac, Shona
Shipley, Ms Debra


McKenna, Mrs Rosemary
Short, Rt Hon Clare


McNulty, Tony
Singh, Marsha


MacShane, Denis
Skinner, Dennis


Mactaggart, Fiona
Smith, Rt Hon Andrew (Oxford E)


McWalter, Tony
Smith, Angela (Basildon)


Mallaber, Judy
Smith, Rt Hon Chris (Islington S)


Marsden, Gordon (Blackpool S)
Smith, Miss Geraldine (Morecambe & Lunesdale)


Marsden, Paul (Shrewsbury)



Marshall, David (Shettleston)
Smith, Jacqui (Redditch)


Martlew, Eric
Smith, John (Glamorgan)


Maxton, John
Snape, Peter


Meacher, Rt Hon Michael
Soley, Clive


Merron, Gillian
Southworth, Ms Helen


Milburn, Rt Hon Alan
Spellar, John


Miller, Andrew
Squire, Ms Rachel


Moffatt, Laura
Starkey, Dr Phyllis


Moonie, Dr Lewis
Steinberg, Gerry


Moran, Ms Margaret
Stevenson, George


Morley, Elliot
Stewart, David (Inverness E)


Morris, Rt Hon Ms Estelle (B'ham Yardley)
Stewart, Ian (Eccles)



Stinchcombe, Paul


Mountford, Kali
Stoate, Dr Howard


Mudie, George
Strang, Rt Hon Dr Gavin


Mullin, Chris
Straw, Rt Hon Jack


Murphy, Denis (Wansbeck)
Stringer, Graham


Murphy, Jim (Eastwood)
Stuart, Ms Gisela


Murphy, Rt Hon Paul (Torfaen)
Taylor, Rt Hon Mrs Ann (Dewsbury)


Naysmith, Dr Doug



Norris, Dan
Taylor, Ms Dari (Stockton S)


O'Brien, Bill (Normanton)
Taylor, David (NW Leics)


O'Brien, Mike (N Warks)
Temple-Morris, Peter


Olner, Bill
Thomas, Gareth (Clwyd W)





Thomas, Gareth R (Harrow W)
Whitehead, Dr Alan


Timms, Stephen
Wicks, Malcolm


Tipping, Paddy
Williams, Rt Hon Alan (Swansea W)


Todd, Mark



Touhig, Don
Williams, Alan W (E Carmarthen)


Trickett, Jon
Wills, Michael


Truswell, Paul
Wilson, Brian


Turner, Dennis (Wolverh'ton SE)
Winnick, David


Turner, Dr George (NW Norfolk)
Winterton, Ms Rosie (Doncaster C)


Turner, Neil (Wigan)
Wood, Mike


Twigg, Derek (Halton)
Woodward, Shaun


Twigg, Stephen (Enfield)
Woolas, Phil


Tynan, Bill
Worthington, Tony


Walley, Ms Joan
Wright, Anthony D (Gt Yarmouth)


Ward, Ms Claire



Wareing, Robert N
Tellers for the Noes:


Watts, David
Mr. Gerry Sutcliffe and


White, Brian
Mr. Jim Dowd.

Question accordingly negatived.

Clause 31

AUDIT FUNCTIONS

Amendment made: No. 60, in page 18, leave out lines 1 and 2 and insert—
'(b) the examination of the economy, efficiency and effectiveness with which other public authorities use their resources in discharging their functions.'.—

[Mr. Mike Hall.]

Clause 33

FORMULATION OF GOVERNMENT POLICY, ETC.

Amendment proposed: No. 10, in page 18, line 32, at end insert—
'(1A) Information is not exempt by virtue of subsection (1) or section 34 insofar as it consists of factual information.'.—[Mr. Simon Hughes.]

Question accordingly negatived.

BUSINESS OF THE HOUSE

It being after Ten o'clock, further consideration of the Bill stood adjourned.

Motion made, and Question put forthwith, pursuant to Standing Order No. 15 (Exempted business),
That, at this day's sitting, the Freedom of Information Bill may be proceeded with, though opposed, until any hour.—[Mr. Mike Hall.]

Question agreed to.

As amended in the Standing Committee, again considered.

Clause 34

PREJUDICE TO EFFECTIVE CONDUCT OF PUBLIC AFFAIRS

Mr. Maclennan: I beg to move amendment No. 12, in page 19, line 12, leave out from "if' to "disclosure" in line 13.

Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: No. 27, in page 19, line 15" after "to,", insert "substantially".
No. 28, in page 19, line 20" after "to,", insert "substantially".
No. 43, in page 19, line 23, leave out from "deliberation" to end of line 25.
No. 29, in page 19, line 24" after first "otherwise", insert "substantially".
No. 30, in page 19, line 24, after "to", insert "substantially".
No. 13, in page 19, line 28, leave out from "that" to "compliance".
No. 14, in page 19, line 31, leave out from beginning to end of line 34 on page 20.
Government amendments Nos. 61, 87 and 88.

Mr. Maclennan: Clause 34 is probably the most obnoxious clause remaining to be considered in detail tonight. Our amendments are designed to prevent the purposes of the Bill being vitiated in an all-embracing fashion by the elimination of the test of harm being determined by reference to the
reasonable opinion of a qualified person.
That is a bizarre provision, which could sabotage the entire Bill if it is allowed to stand. The provision would allow Government Departments to claim, without any significant harm test, that disclosures would be harmful to public affairs, whereas there are provisions that would allow—[Interruption.]

Mr. Deputy Speaker: Order. General conversations are taking place throughout the Chamber. Hon. Members must listen to the right hon. Gentleman who is addressing the House.

Mr. Maclennan: There are provisions that would allow the Secretary of State for Defence, for example, to withhold information, wrongly claiming that disclosure would prejudice the country's defences. In that circumstance, under clause 24 the commissioner could overturn the decision. Other major matters might be those handled by the Chancellor of the Exchequer, and prejudice to the economy could be claimed. Those matters could be reviewed objectively by the commissioner.
This catch-all provision is designed to prevent that scrutiny being effective. Its purpose is to enable the so-called "qualified person" to give a view, the reasonableness of which can be challenged only by judicial review criteria.
In my judgment and that of hon. Members on all sides of the House, this is one of the most unattractive measures in the Bill. It is a belt-and-braces provision. It covers broadly the same matters as clause 33 and is wholly unnecessary. If amendment No. 12 is accepted, as I profoundly hope it will be tonight, or something similar to it on another occasion, it will restore the objectivity of the test of harm. That is a core necessity.
The test would be applied to information which, in the authority's "reasonable opinion", would inhibit the frankness of advice or exchange of views, or otherwise
prejudice the effective conduct of public affairs.
The language of the clause makes it plain how broad that exclusionary provision is.
The matter has been considered by a number of bodies. It was considered by the Select Committee on Public Administration, which asked that the "reasonable opinion" test be dropped and gave its reasons, which were forceful and commended themselves to those who are advancing the amendment.
The House of Lords Select Committee also concluded that the exemption "goes too far" and that
the test should be an objective one, reviewable by the Information Commissioner.
if the Minister can produce any new arguments, I have no doubt that the House will listen with enormous interest. So far, the catch-all provision has been defended with arguments that have not carried weight with those who scrutinised the Bill closely in draft form. Those arguments did not carry weight in the Committee that considered the Bill and should not carry weight tonight.

Dr. Tony Wright: I shall be brief. Although time presses, it would be remiss to allow the relevant provisions to pass without the comment that they deserve.

If we were considering them at a different hour, they would receive more attention than they will receive in the next few minutes.
We are considering profoundly important provisions. Those who were here many hours ago would have heard me describe the four barricades that the Government had erected in clauses 33 and 34 to prevent access to policy areas. The amendment would simply remove one of the barricades. Three barricades would remain.
The exemption in clause 34 allows any public authority, including Departments, local authorities and quangos to assert that
in the reasonable opinion of a qualified person—
a Minister or an official—
disclosure would…prejudice…the effective conduct of public affairs.
That means that the commissioner could not challenge that opinion unless it was irrational. That is a strong test. An official could advance all sorts of reasons to show that the opinion was not irrational.
The Government rightly emphasise the interlocking character and the seamless quality of the Bill. One has to understand one bit of it in order to understand another, and to understand the impact of the commissioner's power on the exemptions. The Bill keeps crucial provisions from the commissioner because it incorporates the test of irrationality. It thus needlessly erects a barrier to access. Such a barrier should not exist. Amendment No. 12 simply asks the Government to remove one of the four barricades that they have erected and move more seriously towards openness and access.

Mr. Quentin Davies: I start by disagreeing with one of the comments of the hon. Member for Cannock Chase (Dr. Wright). I entirely agree with his remarks about the substance of clause 34 and the amendments. However, he suggested that we should consider the matter only perfunctorily because of the late hour. The issues that we are examining and the question whether we are, to use the Prime Minister's words before the last election, entering a new era of fundamental change in the relationship between the Government and the public, in which we have the courage to establish new standards of information disclosure and openness in government, are sufficiently important for us to consider the Bill through the night or beyond. We should not therefore be inhibited by considerations of the hour.

Dr. Tony Wright: Will the hon. Gentleman give way?

Mr. Davies: I shall, but I want to move on to the hon. Gentleman's important substantive points.

Dr. Wright: I should like to correct the hon. Gentleman. I did not say that we should, but that we would, pay less attention to the Bill because of the lateness of the hour.

Mr. Davies: I am happy to stand corrected and to withdraw any aspect of my remarks that might have been regarded as disparaging or critical of the hon. Gentleman. I accept the exegesis of his remarks in the spirit in which they were delivered. I do not want to develop the bad habit that seems to have been established between the


hon. Gentleman and me of disagreeing about secondary or tertiary matters, because we agree on the substance of what is at stake.
The Bill was sufficiently restrictive of the public's right to know what happens on their behalf behind the green baize door of government before we reached clause 34. Clause 33 excludes a vast range of Government activities, including
the formulation or development of government policy, Ministerial communications, the provision of advice by any of the Law Officers…the operation of any Ministerial private office.
10.15 pm
Other provisions refer to the security services and there are all sorts of other specific exclusions under which information that falls into certain categories could not even be expected and no case for disclosure to the public, ab initio, could be considered. As if that were not enough, the clause contains the catch-all that, even if information was not in an exempt category, the mere decision of a so-called qualified person—that refers not only to Ministers of the Crown, but to all sorts of other people—could override what ought to be the Government's primary obligation: giving the public a fair and true account of events.
That is thoroughly unsatisfactory and I very much support amendment No. 12, which would remove the obnoxious phrase
in the reasonable opinion of a qualified person…
Anybody could say that his opinion was reasonable, which strengthens the argument against the words
would, or would be likely to, prejudice—
(i) the maintenance of the convention of the collective responsibility of Ministers…frank and free provision of advice…the frank and free exchange of views…
Anybody could make a case for any information being withheld on those vague, broadly drawn grounds. At least the amendment would tighten that a little. If the phrase
in the reasonable opinion of a qualified person…
were deleted, subsection (2) would state:
Information to which this section applies is exempt information if disclosure of the information…would, or would be likely to, prejudice…
Presumably, that would mean that the Information Commissioner would be the arbiter of whether there would be prejudice if the information were revealed. That is a more satisfactory and objective solution.
We are once again dealing with a great theme of the Bill: Ministers would argue and decide in their own case, without any further appeal, that a matter or information should not be revealed. They are being given amazingly broad grounds: pick one, choose any—there is a whole list with which they could justify the withholding of the information. The amendment represents the absolute minimum requirement if we are even to begin to accept that there is any sincere intention on the Government's part to open up proceedings in the Executive branch and to give real substance and meaning to the Bill.

Mr. Fisher: If we do not amend the clause, the great danger is that it is likely to be one of the most used. Any of the 340 public authorities that did not want to release information that was not exempt would find it easy not to master the Bill or to see its way through the thicket of

harm tests and other matters, but simply to home in on the clause and say that a senior executive thinks that the release of information would prejudice the frank and free exchange of information or the efficient conduct of the body. Anything could be caught. If it is to approve the measure, the House must understand the power that it will give to all those bodies to avoid the Bill's intention, which is to give the public a right of access to public information.
We are meant to be giving people rights to have information that should be theirs—they pay for it and actions are taken on their behalf. The clause will frustrate that—it is bound to do so—and I fear that it will be used again and again. I draw the House's attention to what my hon. Friend the Under-Secretary of State for the Home Department said in Committee:
The Government consider that only a qualified person can have a full understanding of the issues involved in the decision-making processes of a public authority.
That is an extraordinarily bold and broad remark. He went on to say:
we do not consider that it would be right for the prejudice caused by that sort of information to he determined by the commissioner.—[Official Report, Standing Committee B, 27 January 2000; c. 321.]
That is even more disturbing. The commissioner, who is the one guardian of the rights for the public on which we are legislating, has almost been weighed down with praise from both sides of the House. She is an admirable woman, and everyone is delighted that she has got the job, but she will not be trusted by the Government. The Government do not consider that her opinion should be even weighed in the balance, let alone have priority over the self-validation of senior people in the public authorities.
The Government's proposal really does not make sense. I trust that if we cannot frustrate this misconceived clause here, those in another place will view it with much more rigour and with less charity.

Mr. Simon Hughes: Earlier, we discussed whether the final decision should remain with this place or with Ministers accountable to this place—the hon. Member for Buckingham (Mr. Bercow), among others, used the phrase "democratic accountability—or whether it should lie with an authority outside this place.
Anyone reading the Bill, especially clause 34, would surely agree with my right hon. Friend the Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) and others that the flaw in the Government's proposal is that it allows someone speaking for the body in question to decide what should be disclosed. In relation to non-public authorities—other elements of public life—it would be reasonable for Parliament, Ministers, chief executives, the Speaker, the Clerk of the House or the presiding officer to make decisions. When it comes to the vested interests of the body involved, it is clearly unhelpful to the public access intentions of the Bill for the person making the decision to be the person who approaches that decision from the point of view of the organisation whose information is to be released. Self-evidently, that person will take the view of the organisation.
Let me give an obvious example. The amendment seeks to remove the fact that the "qualified person" who would make the decision on the basis of having a "reasonable opinion" and of being appropriately qualified, in relation to


a Government Department, would be any Minister of the Crown. Advice would be given by civil servants. The civil servants would say, "Minister, this could prejudice"—that is the test—"the maintenance of collective responsibility", or
the free and frank provision of advice.
The Minister, on the basis of the advice given, would be entitled without question to take the view that that was reasonable advice which he or she was bound to follow, but no court could deal with that. The whole point is that, under administrative law, it is outwith the ability of the court to say that a perfectly reasonable decision had not been made. The decision is reached from the prejudiced point of view of the organisation against which, as it were, someone is seeking information. We are trying to establish a mechanism to provide an objective assessment that is not performed by someone within the organisation. What we are discussing is whether an outsider or an insider decides whether prejudice is involved. The history of the debate, in this country and everywhere else, suggests that someone outside must adjudicate, with all the checks and balances that the legislation provides.
The hon. Members for Cannock Chase (Dr. Wright) and for Grantham and Stamford (Mr. Davies) suggested that, although we had been debating these matters for nearly two working days, we had not given the matter the attention that it deserved. I am sure no one who has looked at the Bill fails to realise that the clause and the amendments are hugely significant. As the hon. Member for Cannock Chase said, this is where the block will come. This is the clause that allows people to say, "No, you cannot have the information", and no one will be able to have that reviewed or overturned. This is the blocking mechanism that can be used by an individual who will act on advice, perhaps in good faith but not necessarily so. I hope that the House will support the amendment.
I do not know the official Opposition's position on amendment No. 12, but I hope that they will support us on it. Still, I pay tribute to them—they have moved, now that they are in opposition, from thinking that there should not be a statute governing these matters to a somewhat more progressive view. In this debate, of all the forces ranged around the argument, it is the Opposition parties and Labour Members who are not Ministers—

Dr. Lynne Jones: Not likely.

Mr. Hughes: I truly believe that, one day, the enlightened will be vindicated, and that even the day of Government enlightenment will dawn. I hope that the hon. Lady and I will be there, walking through the gates, when that happens.
I hope that Conservative Members will join us in the Lobby. It is important that we should not provide a blocking mechanism to those who have an interest to protect. We have to take the right to decide away from those who could themselves cause the most harm to freedom of information.

Mr. Greenway: The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) has tempted me to say that, in Committee, on behalf of the Opposition, I proposed that clause 34 should be deleted entirely. That

is not an appropriate proposal to make on Report. Nevertheless, I agree with all that he said about the clause's provisions—which the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan), if I heard him correctly, described as belt and braces: the belt is clause 33, and the braces are clause 34. Conservative Members have consistently taken the view that we should not have both.
I suspect that my hon. Friend the Member for Surrey Heath (Mr. Hawkins) may be tempted to suggest that our problem with amendment No. 12 is that—other than the fact that it does not really deal with the pernicious nature of the clause, which we should prefer to be deleted from the Bill entirely; I hope that the other place comes to the same conclusion—it is predicated on the narrow basis of whether there should be a test of reasonableness. I am not entirely sure that I know quite where the balance of the argument lies on that issue. On what basis is the decision maker—be he a Minister, local authority chief executive or the chief executive of any of the many quasi-autonomous national government organisations caught by the Bill—to decide that the release of information is likely to prejudice the effective conduct of public affairs?
I think that Ministers—to be fair to them—have reached the judgment that there should be a test of reasonableness. If they have reached that judgment, the Bill should make it clear that that is the test. It should also make it clear that it is open to the commissioner to rule that someone who is qualified to decide on the release of information—on the basis that it would prejudice the conduct of public affairs—made that decision unreasonably.
The provision is therefore not quite as draconian as Liberal Democrat spokesmen have suggested. It will be possible to ask the commissioner to challenge the reasonableness of a decision not to release. If she concludes that a decision was unreasonable, she can—on my reading of the Bill—issue both her decision and an enforcement notice requiring release of that information.
10.30 pm
In Committee, we argued that the clause should be deleted, because it is an unnecessary addition to the Bill. I was one of the earliest speakers in the debate, but I endorse everything that was said by those who spoke later about the quality of the debate and the release of information that informs and advises Ministers on Government policy. If the clause has the validity that Ministers believe that it has in not requiring all information to be released, I fail to understand why it is necessary, given all the other exemptions in the Bill. We would rather it was deleted, but if it is to stay, there has to be a test.

Mr. Hawkins: My hon. Friend the Member for Ryedale (Mr. Greenway), who dealt with the issue in Committee, has set out our position. We have some sympathy with the amendment, but we shall not join the Liberal Democrats in the Lobby if they press the matter to a vote.

Mr. Lock: The clause rightly focuses on the first test of whether information should be exempt. Should it be the decision of a commissioner on whether disclosure would be likely to inhibit the free and frank provision of


advice or exchange of views for the purpose of deliberation, or should it be the reasonable opinion of a qualified person? The issues involved in the decision-taking process of public authorities are so near the heart of government that we believe that only a qualified person, as defined by the Bill, can have a full understanding of them. Although the issues in clause 34 are less sensitive than those in clause 33 and a class exemption is not justified, the Government do not believe that it would be right for the commissioner to substitute her view for that of the authority on the question of prejudice; hence the test of the reasonable opinion of a qualified person.
The hon. Member for Ryedale (Mr. Greenway) is right. The commissioner may still overturn the decision of a qualified person if she believes the decision to be unreasonable. I confirm his reading of the Bill. That means that the information would not be exempt and would be disclosable.

Mr. Simon Hughes: If the commissioner ruled that the ministerial decision was unreasonable, would it still be open to the Government to seek a judicial review of that decision?

Mr. Lock: With the greatest respect to the hon. Gentleman, of course it would. Any decision taken in an administrative capacity is subject to judicial review, because the person who takes it is obliged to act within the law. Any decision made by a Minister can be subject to judicial review to determine whether it was lawful. The issue is not what another person would have done had they been the commissioner. The question is whether, applying the Wednesbury irrationality test, the commissioner has acted correctly.
The clause balances the right to know against the public's right to effective public administration. The amendment strikes at the heart of good administration. The Government believe that there must be a compromise measure between the power of the commissioner to order the disclosure of information and effective public administration. The clause delivers that compromise through the concept of a reasonable opinion of a qualified person. The amendments would overturn that balance and the Government cannot accept them.
There is a further reason why we cannot accept the amendments. There has been an assumption in some speeches tonight—including that of the hon. Member for Grantham and Stamford (Mr. Davies), who seems not to be here to listen to the answer to his speech—that clause 13 applies to clause 34. We heard a great deal about clause 13 last night and the Government have moved significantly to strengthen provisions on what happens when there is exempt information. The fact that information has been certified as prejudicial in the reasonable opinion of a qualified person is not the end of the series of tests. The tests are not barriers so much as hurdles that a Government Department must get over in trying to keep information confidential. So those tests—the balancing act in clause 13, the Information Commissioner's opinion as to whether that balancing act has been carried out correctly, and the scheme involving the intervention of the Secretary of State outlined last night by my right hon. Friend—will all apply to the provisions under clause 34.
The right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) is very well informed in these matters, so I am sure that when he introduced the debate he gave the House only the first line of the argument. However, his introduction did not take account of the subsequent hurdles that Government Departments will have to get over to maintain confidentiality. The balance in clause 34—the reasonable opinion of a qualified person—is thus entirely reasonable.

Mr. Simon Hughes: By definition, these are untested waters in this country. Can the Minister describe the experience in other Administrations that are similar to ours? How often have provisions such as this produced a decision against Ministers? In my experience of administrative law, Ministers would be upheld nine times out of 10, because their decisions would be judged to be within the parameters covered by the word "reasonable".

Mr. Lock: I hear the hon. Gentleman's question, but I am not in a position to answer it tonight. I do not have full details of the experience in other countries, and I am not sure that they would be of significant use, as they might not be exact parallels of the proposals in the Bill or of the circumstances in this country. However, I will write to the hon. Gentleman with some relevant examples, and will copy that information to any other hon. Member who might be interested.
Finally, Government amendments Nos. 61, 87 and 88 are necessary to ensure that references to the Bill's application to Northern Ireland are correct. I shall not say more about them now, but will answer any questions of detail from hon. Members.

Mr. Maclennan: I forecast that the Minister would have little new to say to us, and that has been proved accurate. I chose not to quote in extenso the opinion of the Select Committee on Public Administration, so I have failed to drive home sufficiently clearly the point that using the device of the qualified person as a preliminary hurdle, and allowing that person's reasonable opinion to be the test of whether there is prejudice, precludes the commissioner from reaching an effective judgment. We believe that the commissioner's judgment of what is prejudicial should be substituted.
My hon. Friend the Member for Southwark, North and Bermondsey (Mr. Hughes) asked an entirely apposite question about judicial review. It will be much more difficult to overturn the view of a qualified person than it would be if the commissioner did not have that obstacle in the way.
That would, perhaps, not matter if clause 34(2)(c) did not contain an appalling catch-all phrase. The qualified person can take the view that the disclosure concerned
would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
That means almost anything: it is as wide as the channel.
It is not true—indeed, it is misleading to suggest, as I think that the Minister did—that the matters covered in the clause are issues close to the heart of Government. That is plainly inconsistent with the language used in that subsection. The reality is that it is a device that could sabotage the whole purpose of the Bill. I predict that it could be used time and again to stop the public exercising a right to know.
The clause is most dangerous—it is probably the most dangerous in the Bill—because it could have such a wide and sweeping effect on the right to know. For that reason, I hope that it will be studied with great attention in another place and that there will be a strong disposition there to support the view that was taken by its Committee when it considered the issue and sought a more objective test of prejudice.
I hope that the House will think it right to express forcefully its view on this matter tonight.

Question put, That the amendment be made:—

The House divided: Ayes 55, Noes 324.

Division No. 149]
[10.42 pm


AYES


Allan, Richard
Jones, Jon Owen (Cardiff C)


Ashdown, Rt Hon Paddy
Jones, Dr Lynne (Selly Oak)


Ballard, Jackie
Keetch, Paul


Brake, Tom
Kennedy, Rt Hon Charles (Ross Skye & Inverness W)


Brand, Dr Peter



Breed, Colin
Kirkwood, Archy


Burnett, John
Llwyd, Elfyn


Burstow, Paul
McDonnell, John


Campbell, Rt Hon Menzies (NE Fife)
Maclennan, Rt Hon Robert



Marshall-Andrews, Robert


Clark, Rt Hon Dr David (S Shields)
Michie, Mrs Ray (Argyll & Bute)


Clwyd, Ann
Moore, Michael


Cook, Frank (Stockton N)
Oaten, Mark


Corbyn, Jeremy
Öpik, Lembit


Cotter, Brian
Prentice, Gordon (Pendle)


Cousins, Jim
Rendel, David


Dalyell, Tam
Russell, Bob (Colchester)



Sanders, Adrian


Davey, Edward (Kingston)
Shepherd, Richard


Davis, Rt Hon David (Haltemprice)
Simpson, Alan (Nottingham S)


Dunwoody, Mrs Gwyneth
Stunell, Andrew


Fisher, Mark
Taylor, Matthew (Truro)


Foster, Rt Hon Derek
Tonge, Dr Jenny


Foster, Don (Bath)
Tyler, Paul


George, Andrew (St Ives)
Webb, Steve


Harris, Dr Evan
Willis, Phil


Harvey, Nick
Wright, Dr Tony (Cannock)


Heath, David (Somerton & Frome)



Hinchliffe, David
Tellers for the Ayes:


Hopkins, Kelvin
Sir Robert Smith and


Hughes, Simon (Southwark N)
Mr. Ronnie Fearn.




NOES


Ainger, Nick
Blackman, Liz


Ainsworth, Robert (Cov'try NE)
Blears, Ms Hazel


Alexander, Douglas
Blizzard, Bob


Anderson, Donald (Swansea E)
Blunkett, Rt Hon David


Anderson, Janet (Rossendale)
Boateng, Rt Hon Paul


Armstrong, Rt Hon Ms Hilary
Bradley, Keith (Withington)


Atherton, Ms Candy
Bradley, Peter (The Wrekin)


Atkins, Charlotte
Bradshaw, Ben


Austin, John
Brinton, Mrs Helen


Barnes, Harry
Brown, Rt Hon Nick (Newcastle E)


Barron, Kevin
Brown, Russell (Dumfries)


Bayley, Hugh
Browne, Desmond


Beard, Nigel
Buck, Ms Karen


Beckett, Rt Hon Mrs Margaret
Burden, Richard


Begg, Miss Anne
Burgon, Colin


Beggs, Roy
Butler, Mrs Christine


Benn, Hilary (Leeds C)
Byers, Rt Hon Stephen


Bennett, Andrew F
Caborn, Rt Hon Richard


Benton, Joe
Campbell, Alan (Tynemouth)


Bermingham, Gerald
Campbell, Ronnie (Blyth V)


Berry, Roger
Campbell-Savours, Dale


Best, Harold
Cann, Jamie





Caplin, Ivor
Griffiths, Win (Bridgend)


Casale, Roger
Grocott, Bruce


Caton, Martin
Grogan, John


Cawsey, Ian
Hain, Peter


Chapman, Ben (Wirral S)
Hall, Mike (Weaver Vale)


Chaytor, David
Hamilton, Fabian (Leeds NE)


Clapham, Michael
Hanson, David


Clark, Dr Lynda (Edinburgh Pentlands)
Heal, Mrs Sylvia



Healey, John


Clark, Paul (Gillingham)
Henderson, Doug (Newcastle N)



Hepburn, Stephen


Clarke, Charles (Norwich S)
Heppell, John


Clarke, Eric (Midlothian)
Hesford, Stephen


Clarke, Tony (Northampton S)
Hill, Keith


Coaker, Vernon
Hodge, Ms Margaret


Coffey, Ms Ann
Hoey, Kate


Cohen, Harry
Hood, Jimmy


Coleman, Iain
Hoon, Rt Hon Geoffrey


Colman, Tony
Hope, Phil


Connarty, Michael
Howarth, Alan (Newport E)



Howarth, George (Knowsley N)


Cook, Rt Hon Robin (Livingston)
Howells, Dr Kim


Cooper, Yvette
Hoyle, Lindsay


Corston, Jean
Hughes, Kevin (Doncaster N)


Cranston, Ross
Humble, Mrs Joan


Cryer, John (Hornchurch)
Hurst, Alan


Cummings, John
Hutton, John


Cunningham, Rt Hon Dr Jack (Copeland)
Iddon, Dr Brian



Illsley, Eric


Cunningham, Jim (Cov'try S)
Ingram, Rt Hon Adam


Curtis-Thomas, Mrs Claire
Jackson, Ms Glenda (Hampstead)


Darling, Rt Hon Alistair
Jackson, Helen (Hillsborough)


Darvill, Keith
Jamieson, David


Davey, Valerie (Bristol W)
Jenkins, Brian


Davidson, Ian
Johnson, Alan (Hull W & Hessle)


Davies, Rt Hon Denzil (Llanelli)
Johnson, Miss Melanie (Welwyn Hatfield)


Davies, Geraint (Croydon C)



Dawson, Hilton
Jones, Rt Hon Barry (Alyn)


Dean, Mrs Janet
Jones, Helen (Warrington N)



Jones, Martyn (Clwyd S)


Denham, John
Jowell, Rt Hon Ms Tessa


Dismore, Andrew
Kaufman, Rt Hon Gerald


Dobbin, Jim
Keeble, Ms Sally


Donaldson, Jeffrey
Keen, Alan (Feltham & Heston)


Donohoe, Brian H
Keen, Ann (Brentford & Isleworth)


Doran, Frank
Kemp, Fraser


Dowd, Jim
Kennedy, Jane (Wavertree)


Eagle, Angela (Wallasey)
Khabra, Piara S


Eagle, Maria (L'pool Garston)
Kidney, David


Edwards, Huw
Kilfoyle, Peter


Efford, Clive
King, Andy (Rugby & Kenilworth)


Ellman, Mrs Louise
King, Ms Oona (Bethnal Green)


Ennis, Jeff
Ladyman, Dr Stephen



Lawrence, Mrs Jackie


Field, Rt Hon Frank
Laxton, Bob


Fitzpatrick, Jim
Lepper, David


Fitzsimons, Lorna
Leslie, Christopher


Flint, Caroline
Levitt, Tom


Follett, Barbara
Lewis, Ivan (Bury S)


Foster, Michael Jabez (Hastings)
Lewis, Terry (Worsley)


Foster, Michael J (Worcester)
Liddell, Rt Hon Mrs Helen


Foulkes, George
Linton, Martin


Galloway, George
Lock, David


Gapes, Mike
Love, Andrew


Gardiner, Barry
McAvoy, Thomas


George, Bruce (Walsall S)
McCabe, Steve


Gerrard, Neil
McDonagh, Siobhain



Macdonald, Calum


Gilroy, Mrs Linda
McFall, John


Godman, Dr Norman A
McGuire, Mrs Anne


Godsiff, Roger
McIsaac, Shona


Goggins, Paul
McKenna, Mrs Rosemary


Golding, Mrs Llin
McNulty, Tony


Gordon, Mrs Eileen
MacShane, Denis


Griffiths, Jane (Reading E)
Mactaggart, Fiona


Griffiths, Nigel (Edinburgh S)
McWalter, Tony






McWilliam, John
Shaw, Jonathan


Maginnis, Ken
Sheerman, Barry


Mahon, Mrs Alice
Shipley, Ms Debra


Mallaber, Judy
Singh, Marsha


Marsden, Gordon (Blackpool S)
Skinner, Dennis


Marsden, Paul (Shrewsbury)
Smith, Rt Hon Andrew (Oxfotd E)


Marshall, David (Shettleston)
Smith, Angela (Basildon)


Marshall, Jim (Leicester S)
Smith, Rt Hon Chris (Islington S)


Martlew, Eric
Smith, Miss Geraldine (Morecambe & Lunesdale)


Maxton, John



Meacher, Rt Hon Michael
Smith, Jacqui (Redditch)


Merron, Gillian
Smith, John (Glamorgan)


Michie, Bill (Shef'ld Heeley)
Smith, Llew (Blaenau Gwent)


Milburn, Rt Hon Alan
Snape, Peter


Miller, Andrew
Soley, Clive


Moffatt, Laura
Southworth, Ms Helen


Moonie, Dr Lewis
Spellar, John


Moran, Ms Margaret
Squire, Ms Rachel


Morgan, Ms Julie (Cardiff N)
Starkey, Dr Phyllis


Morley, Elliot
Steinberg, Gerry


Morris, Rt Hon Ms Estelle (B'ham Yardley)
Stevenson, George



Stewart, David (Inverness E)


Mountford, Kali
Stewart, Ian (Eccles)


Mullin, Chris
Stinchcombe, Paul


Murphy, Denis (Wansbeck)
Stoate, Dr Howard


Murphy, Jim (Eastwood)
Strang, Rt Hon Dr Gavin


Murphy, Rt Hon Paul (Torfaen)
Straw, Rt Hon Jack


Naysmith, Dr Doug
Stringer, Graham


Norris, Dan
Stuart, Ms Gisela


O'Brien, Bill (Normanton)
Sutcliffe, Gerry


O'Brien, Mike (N Warks)
Taylor, Rt Hon Mrs Ann (Dewsbury)


Olner, Bill



Organ, Mrs Diana
Taylor, Ms Dari (Stockton S)


Osborne, Ms Sandra
Taylor, David (NW Leics)


Palmer, Dr Nick
Temple-Morris, Peter


Pearson, Ian
Thomas, Gareth (Clwyd W)


Pendry, Tom
Thomas, Gareth R (Harrow W)


Perham, Ms Linda
Timms, Stephen


Pickthall, Colin
Tipping, Paddy


Pike, Peter L
Todd, Mark


Plaskitt, James
Touhig, Don


Pollard, Kerry
Trickett, Jon


Pond, Chris
Truswell, Paul


Pope, Greg
Turner, Dennis (Wolverh'ton SE)


Pound, Stephen
Turner, Dr George (NW Norfolk)


Powell, Sir Raymond
Turner, Neil (Wigan)


Prentice, Ms Bridget (Lewisham E)
Twigg, Derek (Halton)



Twigg, Stephen (Enfield)


Prescott, Rt Hon John
Tynan, Bill


Primarolo, Dawn
Walley, Ms Joan


Prosser, Gwyn
Ward, Ms Claire


Purchase, Ken
Wareing, Robert N


Quinn, Lawrie
Watts, David


Radice, Rt Hon Giles
White, Brian


Rammell, Bill
Whitehead, Dr Alan


Raynsford, Nick
Wicks, Malcolm


Reed, Andrew (Loughborough)
Williams, Rt Hon Alan (Swansea W)


Reid, Rt Hon Dr John (Hamilton N)



Robinson, Geoffrey (Cov'try NW)
Williams, Alan W (E Carmarthen)


Roche, Mrs Barbara
Williams, Mrs Betty (Conwy)


Rooker, Rt Hon Jeff
Wills, Michael


Rooney, Terry
Wilson, Brian


Ross, Ernie (Dundee W)
Winnick, David


Rowlands, Ted
Winterton, Ms Rosie (Doncaster C)


Roy, Frank
Wood, Mike


Ruane, Chris
Woodward, Shaun


Russell, Ms Christine (Chester)
Woolas, Phil


Ryan, Ms Joan
Wright, Anthony D (Gt Yarmouth)


Salter, Martin
Wyatt, Derek


Sarwar, Mohammad



Savidge, Malcolm
Tellers for the Noes:


Sawford, Phil
Mr. David Clelland and


Sedgemore, Brian
Mr. Clive Betts.

Question accordingly negatived.

Amendment made: No. 61, in page 20, line 10, at end insert—
'() in relation to information held by any public authority which does not fall within paragraph (b), (f) or (j) and whose functions are exercisable wholly or mainly in or as regards Northern Ireland and relate wholly or mainly to transferred matters, means the First Minister and deputy First Minister in Northern Ireland acting jointly, or any Northern Ireland Minister nominated in relation to that public authority by those Ministers so acting,'.—[Mr. Mike Hall.]

Clause 39

INFORMATION PROVIDED IN CONFIDENCE

Amendment made: No. 101, in page 22, line 24, after "that" insert "or any".—[Mr. Mike Hall.]

Clause 42

PROHIBITIONS ON DISCLOSURE

Amendment made: No. 62, in page 23, line 4, leave out "is excluded" and insert "does not arise".—[Mr. Mike Hall.]

Clause 43

POWER TO CONFER ADDITIONAL EXEMPTIONS BY ORDER

Amendment proposed: No. 35, in page 23, line 7, leave out clause 43.—[Mr. Simon Hughes.]

Question put, That the amendment be made:—

The House divided: Ayes 158, Noes 325.

Division No. 150]
[10.54 pm


AYES


Ainsworth, Peter (E Surrey)
Davies, Quentin (Grantham)


Allan, Richard
Davis, Rt Hon David (Haltemprice)


Amess, David
Day, Stephen


Ancram, Rt Hon Michael
Donaldson, Jeffrey


Arbuthnot, Rt Hon James
Dorrell, Rt Hon Stephen


Ashdown, Rt Hon Paddy
Duncan, Alan


Atkinson, Peter (Hexham)
Duncan Smith, Iain


Baldry, Tony
Faber, David


Ballard, Jackie
Fabricant, Michael


Beggs, Roy
Fallon, Michael


Bercow, John
Fearn, Ronnie


Beresford, Sir Paul
Flight, Howard


Blunt, Crispin
Forth, Rt Hon Eric


Body, Sir Richard
Foster, Don (Bath)


Boswell, Tim
Fowler, Rt Hon Sir Norman


Bottomley, Peter (Worthing W)
Fox, Dr Liam


Bottomley, Rt Hon Mrs Virginia
Fraser, Christopher


Brady, Graham
Gale, Roger


Brake, Tom
Garnier, Edward


Brand, Dr Peter
George, Andrew (St Ives)


Brazier, Julian
Gibb, Nick


Breed, Colin
Gillan, Mrs Cheryl


Browning, Mrs Angela
Gorman, Mrs Teresa


Bruce, Ian (S Dorset)
Gray, James


Burnett, John
Green, Damian


Burstow, Paul
Greenway, John


Butterfill, John
Grieve, Dominic


Campbell, Rt Hon Menzies (NE Fife)
Gummer, Rt Hon John



Hamilton, Rt Hon Sir Archie


Chope, Christopher
Hammond, Philip


Clappison, James
Harris, Dr Evan


Clifton-Brown, Geoffrey
Harvey, Nick


Collins, Tim
Hawkins, Nick


Cran, James
Hayes, John


Davey, Edward (Kingston)
Heald, Oliver






Heath, David (Somerton & Frome)
Prior, David


Hogg, Rt Hon Douglas
Randall, John


Horam, John
Rendel, David


Howard, Rt Hon Michael
Robathan, Andrew


Hughes, Simon (Southwark N)
Robertson, Laurence


Hunter, Andrew
Roe, Mrs Marion (Broxbourne)


Jenkin, Bernard
Ruffley, David


Keetch, Paul
Russell, Bob (Colchester)


Kennedy, Rt Hon Charles (Ross Skye & Inverness W)
St Aubyn, Nick



Sanders, Adrian


Key, Robert
Sayeed, Jonathan


King, Rt Hon Tom (Bridgwater)
Shephard, Rt Hon Mrs Gillian


Kirkwood, Archy
Shepherd, Richard


Laing, Mrs Eleanor
Simpson, Keith (Mid-Norfolk)


Lait, Mrs Jacqui
Smith, Sir Robert (W Ab'd'ns)


Lansley, Andrew
Soames, Nicholas


Leigh, Edward
Spelman, Mrs Caroline


Letwin, Oliver
Spring, Richard


Lidington, David
Stanley, Rt Hon Sir John


Lloyd, Rt Hon Sir Peter (Fareham)
Steen, Anthony


Llwyd, Elfyn
Swayne, Desmond


Loughton, Tim
Syms, Robert


Luff, Peter
Tapsell, Sir Peter


Lyell, Rt Hon Sir Nicholas
Taylor, Ian (Esher & Walton)


MacGregor, Rt Hon John
Taylor, John M (Solihull)


McIntosh, Miss Anne
Taylor, Matthew (Truro)


Maclean, Rt Hon David
Thompson, William


Maclennan, Rt Hon Robert
Tonge, Dr Jenny


McLoughlin, Patrick
Tredinnick, David


Madel, Sir David
Trend, Michael


Maginnis, Ken
Tyler, Paul


Malins, Humfrey
Tyrie, Andrew


Maples, John
Viggers, Peter


Mates, Michael
Waterson, Nigel


Michie, Mrs Ray (Argyll & Bute)
Webb, Steve


Moore, Michael
Wells, Bowen


Moss, Malcolm
Whitney, Sir Raymond


Nicholls, Patrick
Whittingdale, John


Norman, Archie
Willis, Phil


Oaten, Mark
Winterton, Mrs Ann (Congleton)


O'Brien, Stephen (Eddisbury)
Winterton, Nicholas (Macclesfield)


Öpik, Lembit
Yeo, Tim


Ottaway, Richard
Young, Rt Hon Sir George


Page, Richard



Paice, James
Tellers for the Ayes:


Pickles, Eric
Mr. Andrew Stunell and


Portillo, Rt Hon Michael
Mr. Brian Cotter.




NOES


Ainger, Nick
Bradley, Peter (The Wrekin)


Ainsworth, Robert (Cov'try NE)
Bradshaw, Ben


Alexander, Douglas
Brinton, Mrs Helen


Anderson, Donald (Swansea E)
Brown, Rt Hon Nick (Newcastle E)


Anderson, Janet (Rossendale)
Brown, Russell (Dumfries)


Armstrong, Rt Hon Ms Hilary
Browne, Desmond


Atherton, Ms Candy
Buck, Ms Karen


Atkins, Charlotte
Burden, Richard


Austin, John
Burgon, Colin


Banks, Tony
Butler, Mrs Christine


Barnes, Harry
Byers, Rt Hon Stephen


Barron, Kevin
Caborn, Rt Hon Richard


Bayley, Hugh
Campbell, Alan (Tynemouth)


Beard, Nigel
Campbell, Ronnie (Blyth V)


Beckett, Rt Hon Mrs Margaret
Campbell-Savours, Dale


Begg, Miss Anne
Cann, Jamie


Benn, Hilary (Leeds C)
Caplin, Ivor


Bennett, Andrew F
Casale, Roger


Benton, Joe
Caton, Martin


Bermingham, Gerald
Cawsey, Ian


Berry, Roger
Chapman, Ben (Wirral S)


Best, Harold
Chaytor, David


Blackman, Liz
Clapham, Michael


Blears, Ms Hazel
Clark, Rt Hon Dr David (S Shields)


Blizzard, Bob
Clark, Dr Lynda (Edinburgh Pentlands)


Boateng, Rt Hon Paul



Bradley, Keith (Withington)
Clark, Paul (Gillingham)





Clarke, Charles (Norwich S)
Healey, John


Clarke, Eric (Midlothian)
Henderson, Doug (Newcastle N)


Clarke, Tony (Northampton S)
Hepburn, Stephen


Coaker, Vernon
Heppell, John


Coffey, Ms Ann
Hesford, Stephen


Cohen, Harry
Hill, Keith


Coleman, Iain
Hinchliffe, David


Colman, Tony
Hodge, Ms Margaret


Connarty, Michael
Hoey, Kate



Hood, Jimmy


Cook, Frank (Stockton N)
 Hoon, Rt Hon Geoffrey


Cook, Rt Hon Robin (Livingston)
Hope, Phil


Cooper, Yvette
Hopkins, Kelvin


Corston, Jean
Howarth, Alan (Newport E)


Cousins, Jim
Howarth, George (Knowsley N)


Cranston, Ross
Howells, Dr Kim


Cryer, John (Hornchurch)
Hoyle, Lindsay


Cummings, John
Hughes, Kevin (Doncaster N)


Cunningham, Rt Hon Dr Jack (Copeland)
Humble, Mrs Joan



Hurst, Alan


Cunningham, Jim (Cov'try S)
Hutton, John


Curtis-Thomas, Mrs Claire
Iddon, Dr Brian


Dalyell, Tam
Illsley, Eric


Darling, Rt Hon Alistair
Ingram, Rt Hon Adam


Darvill, Keith
Jackson, Ms Glenda (Hampstead)



Jackson, Helen (Hillsborough)


Davey, Valerie (Bristol W)
 Jamieson, David


Davidson, Ian
 Jenkins, Brian


Davies, Rt Hon Denzil (Llanelli)
Johnson, Alan (Hull W & Hessle)


Davies, Geraint (Croydon C)
Johnson, Miss Melanie (Welwyn Hatfield)


Dawson, Hilton



Dean, Mrs Janet
Jones, Rt Hon Barry (Alyn)


Denham, John
Jones, Helen (Warrington N)


Dismore, Andrew
Jones, Martyn (Clwyd S)


Dobbin, Jim
Jowell, Rt Hon Ms Tessa


Donohoe, Brian H
Kaufman, Rt Hon Gerald


Doran, Frank
Keeble, Ms Sally


Dowd, Jim
Keen, Alan (Feltham & Heston)


Eagle, Angela (Wallasey)
Keen, Ann (Brentford & Isleworth)


Eagle, Maria (L'pool Garston)
Kemp, Fraser


Edwards, Huw
Kennedy, Jane (Wavertree)


Efford, Clive
Khabra, Piara S


Ellman, Mrs Louise
Kidney, David


Ennis, Jeff
King, Andy (Rugby & Kenilworth)


Field, Rt Hon Frank
King, Ms Oona (Bethnal Green)


Fitzpatrick, Jim
Ladyman, Dr Stephen


Fitzsimons, Lorna
Laxton, Bob



Lepper, David


Flint, Caroline
Leslie, Christopher


Follett, Barbara
Levitt, Tom


Foster, Rt Hon Derek
Lewis, Ivan (Bury S)


Foster, Michael Jabez (Hastings)
Lewis, Terry (Worsley)


Foster, Michael J (Worcester)
Liddell, Rt Hon Mrs Helen


Foulkes, George
Linton, Martin


Galloway, George
Lock, David


Gapes, Mike
Love, Andrew


Gardiner, Barry
McAvoy, Thomas


George, Bruce (Walsall S)
McCabe, Steve


Gerrard, Neil
McDonagh, Siobhain


Gilroy, Mrs Linda
Macdonald, Calum


Godman, Dr Norman A
McFall, John


Godsiff, Roger
McGuire, Mrs Anne


Goggins, Paul
McIsaac, Shona


Golding, Mrs Llin
McKenna, Mrs Rosemary


Gordon, Mrs Eileen
McNulty, Tony



MacShane, Denis


Griffiths, Jane (Reading E)
Mactaggart, Fiona


Griffiths, Nigel (Edinburgh S)
McWalter, Tony


Griffiths, Win (Bridgend)
McWilliam, John


Grocott, Bruce
Mahon, Mrs Alice


Grogan, John
Mallaber, Judy


Hain, Peter
Marsden, Gordon (Blackpool S)


Hall, Mike (Weaver Vale)
Marsden, Paul (Shrewsbury)


Hamilton, Fabian (Leeds NE)
Marshall, David (Shettleston)


Hanson, David
Marshall, Jim (Leicester S)


Heal, Mrs Sylvia
Martlew, Eric






Maxton, John
Smith, Rt Hon Andrew (Oxford E)


Meacher, Rt Hon Michael
Smith, Angela (Basildon)


Merron, Gillian
Smith, Rt Hon Chris (Islington S)


Michie, Bill (Shef'ld Heeley)
Smith, Miss Geraldine (Morecambe & Lunesdale)


Milburn, Rt Hon Alan



Miller, Andrew
Smith, Jacqui (Redditch)


Moffatt, Laura
Smith, John (Glamorgan)


Moonie, Dr Lewis
Smith, Llew (Blaenau Gwent)


Moran, Ms Margaret
Snape, Peter


Morley, Elliot
Soley, Clive


Morris, Rt Hon Ms Estelle (B'ham Yardley)
Southworth, Ms Helen



Spellar, John


Mountford, Kali
Squire, Ms Rachel


Mullin, Chris
Starkey, Dr Phyllis


Murphy, Denis (Wansbeck)
Steinberg, Gerry


Murphy, Jim (Eastwood)
Stevenson, George


Murphy, Rt Hon Paul (Torfaen)
Stewart, David (Inverness E)


Naysmith, Dr Doug
Stewart, Ian (Eccles)


Norris, Dan
Stinchcombe, Paul


O'Brien, Bill (Normanton)
Stoate, Dr Howard


O'Brien, Mike (N Warks)
Straw, Rt Hon Jack


Olner, Bill
Stringer, Graham


O'Neill, Martin
Stuart, Ms Gisela


Organ, Mrs Diana
Sutcliffe, Gerry


Osborne, Ms Sandra
Taylor, Rt Hon Mrs Ann (Dewsbury)


Palmer, Dr Nick



Pearson, Ian
Taylor, Ms Dari (Stockton S)


Pendry, Tom
Taylor, David (NW Leics)


Perham, Ms Linda
Temple-Morris, Peter


Pickthall, Colin
Thomas, Gareth (Clwyd W)


Pike, Peter L
Thomas, Gareth R (Harrow W)


Plaskitt, James
Timms, Stephen


Pollard, Kerry
Tipping, Paddy


Pond, Chris
Todd, Mark


Pope, Greg
Touhig, Don


Pound, Stephen
Trickett, Jon


Prentice, Ms Bridget (Lewisham E)
Truswell, Paul


Prescott, Rt Hon John
Turner, Dennis (Wolverh'ton SE)


Primarolo, Dawn
Turner, Dr George (NW Norfolk)


Prosser, Gwyn
Turner, Neil (Wigan)


Purchase, Ken
Twigg, Derek (Halton)


Quinn, Lawrie
Twigg, Stephen (Enfield)


Radice, Rt Hon Giles
Tynan, Bill


Rammell, Bill
Walley, Ms Joan


Raynsford, Nick
Ward, Ms Claire


Reed, Andrew (Loughborough)
Wareing, Robert N


Reid, Rt Hon Dr John (Hamilton N)
Watts, David


Robinson, Geoffrey (Cov'try NW)
White, Brian


Roche, Mrs Barbara
Whitehead, Dr Alan


Rooker, Rt Hon Jeff
Wicks, Malcolm


Rooney, Terry
Williams, Rt Hon Alan (Swansea W)


Ross, Ernie (Dundee W)



Rowlands, Ted
Williams, Alan W (E Carmarthen)


Roy, Frank
Wills, Michael


Ruane, Chris
Wilson, Brian


Russell, Ms Christine (Chester)
Winnick, David


Ryan, Ms Joan
Winterton, Ms Rosie (Doncaster C)


Salter, Martin
Wood, Mike


Sarwar, Mohammad
Woodward, Shaun


Savidge, Malcolm
Woolas, Phil


Sawford, Phil
Worthington, Tony


Sedgemore, Brian
Wright, Anthony D (Gt Yarmouth)


Shaw, Jonathan
Wyatt, Derek


Sheerman, Barry



Shipley, Ms Debra
Tellers for the Noes:


Singh, Marsha
Mr. David Clelland and


Skinner, Dennis
Mr. Clive Betts.

Question accordingly negatived.

Amendment made: No. 63, in page 23, leave out lines 38 and 39 and insert—
'(6) Before laying before Parliament a draft of an order under subsection (1) or (2), the Secretary of State shall—


(a) consult the Commissioner, and
(b) publish any written representations made to him by the Commissioner with respect to the proposed order, except so far as those representations contain information which is, or if the order were made would be, exempt information.'.—[Mr. Mike Hall.]

Mr. Straw: I beg to move amendment No. 64, in page 26, line 18, leave out clause 48.

Mr. Deputy Speaker (Sir Alan Haselhurst): With this, it will be convenient to discuss the following: Government amendments Nos. 65 and 66.
Amendment No. 5, in clause 50, page 27, line 27, leave out subsection (7).
Government amendments Nos. 6 and 69 to 71.
Government new clause 6—Exception from duty to comply with decision notice or enforcement notice.

Mr. Straw: I hope not to detain the House long, as the substance of the amendments was debated at some length yesterday evening when we discussed amendment No. 1, which was moved by my hon. Friend the Member for Cannock Chase (Dr. Wright), and earlier today when we discussed amendment No.7, which was also moved by my hon. Friend.
To refresh the recollection of the House, under the original scheme, at the point where the commissioner or tribunal had said that a public authority was not under a duty to disclose information because it was not covered by an exemption or exception under part II of the Bill, there was a procedure for what was described as "discretionary disclosure". The public authority would have to balance the public interest in disclosing the information against the public interest in its not being disclosed. There could be what amounted to an appeal to the commissioner by an applicant whose application had been unsuccessful at that stage, but, as the Bill originally proposed, the commissioner would not make a decision or issue an order, but simply make a recommendation. Hon. Members are aware that, as a result of representations that were made to us, we have changed the Bill, partly in its text and partly by tabling amendments on Report so that the commissioner will have a power to order disclosure subject only to Executive override in the limited circumstances which I described yesterday and to which I referred earlier today.
I shall pick up any questions about the detail of the amendments, but, as they improve the Bill in the eyes of my hon. Friends and, I believe, the House, I hope that there are not too many questions at this stage.
An issue was raised with me about whether I intended to move Government new clause 6 in light of the announcements that I made yesterday that we would amend the scheme in new clause 6. I have considered that, and I understand the argument that some of my hon. Friends have made to me outside the House about that, but I shall now explain why I consider that it is more satisfactory than not to have new clause 6 in the Bill as it goes to the other place, albeit I have given, and shall repeat, the most categorical undertakings that the new clause will be amended in the other place in the terms in which I have given those undertakings.
I suggest that it is our duty to the House to ensure that the Bill goes to the other place properly reflecting the decisions that we have taken, as far as that is possible.


The Government have put before the House—and this proposition has achieved the approbation of the House—the scheme to amend the original proposal for discretionary disclosure in the manner that I have described. That scheme is balanced by amendments to clause 13, and by new clause 6, which contains the power of Executive override.
I believe that, from the Government's point of view, it would be disingenuous for us to send the Bill to the other place having incorporated the change to the position of the commissioner—who would have a power to make an order for disclosure rather than simply what is at the moment a provision for recommendation—without also having on the face of the Bill the balancing arrangement by which there could, in limited circumstances, be an Executive override. For that reason, we do intend to move new clause 6.

Mr. Simon Hughes: I am following the argument and understand it, but does the Home Secretary accept that it would be equally proper, and equally clear, for him to tell the House, in a way that is reported to the other place, that, in the light of the speech that he made last night and the undertakings that he gave, the Government are minded to change course; that it is therefore pointless to take the time of the House to add things that support the proposition that he is now discarding; and that the House need not be troubled by those because the Government will seek to amend the Bill and, as they have done in relation to other legislation—indeed, in this Session—as it were, draw the line after last night and then come forward with their new proposals? That would be equally proper, and more consistent with the statement that the right hon. Gentleman made last night.

Mr. Straw: It is a matter of balance; there is not a huge issue of principle here, but that is the judgment that I have reached. If the whole of new clause 6 had to be recast, I would think that the balance was the hon. Gentleman's way rather than the way that I have suggested.
However, the following amendments will need to be made to new clause 6 in respect of the undertakings that I have given. In subsection (4)(a),
in relation to a government department, means any Minister of the Crown
needs to be redrafted roughly in the terms of clause 23(3), which says
a Minister who is a member of the Cabinet.
In relation to local authorities, new clause 6 will need to be recast to take account of decisions, and it may be, although I cannot give a firm undertaking on this, that after consultation with my Cabinet colleagues, not least the deputy Prime Minister, because this should be a matter of collective decisions, and also with the local authority associations—I am not saying that we automatically follow their view, but we need to ask their view—those references to local authorities are removed altogether. The amendments would be easy to make and would be consistent with the basic scheme of new clause 6.
I repeat the undertakings that I gave yesterday. In place of subsection (4)(a), the clause will contain a provision making it clear that the "accountable person" is a Cabinet

Minister or the Attorney-General, with appropriate other consequential amendments. I have described the situation for local government and said that we shall take our time to reflect on that. However, I well recognise the points that have been made.
11.15 pm
I also told the House yesterday that we would ensure that written into the memorandum of guidance for Ministers was clear guidance as to how they ensured that, except in the area of quasi-judicial decision-making, decisions would be subject to collective agreement. I wish to inform the House that we are giving further and urgent consideration to whether it will be possible to write such provisions into the Bill. If we can do that, we will.

Mr. Simon Hughes: Will the Home Secretary give way?

Mr. Straw: Yes, but I hope that the hon. Gentleman will be brief.

Mr. Hughes: I want clarification. If the Home Secretary is to fulfil what he said last night, he will have to reconsider. More than subsection (4)(a) and the local government clause will need to be amended. He will need to amend subsection (4)(b), which is about Ministers, and the subsection on the Greater London Authority. Does he accept that the amendment will have to be much more significant?

Mr. Straw: I should not have given way, but I said that there would need to be some consequential amendments. The key point is that the scheme of the new clause is contained in subsections (1), (2) and (3) and the accountable person is defined in subsection (4). As I have said, it is a balanced argument.
My final point is that if new clause 6 appears in the Bill for the reasons that I have suggested, it in no sense will prejudice those in the other place or back in this House who want to take a different view about areas other than the one that I have already said that we shall change. For reasons that I have given, and because this is part of a balanced but important change, I hope that the House will accept my explanation for proposing new clause 6.

Mr. Maclennan: I am very much in favour of flexibility on the part of the Home Secretary, and he displayed that last night. However, I am not in favour of legislation on the hoof. His statement tonight on new clause 6 suggests that he thinks that it is better to have a patently defective clause in the Bill, which in no way conforms with his expressed intention, than it is to have a lacuna to be filled. I do not understand the logic of proceeding in that way.
Furthermore, I suggest that the new clause is defective because it makes a presumption that is counter to what the Home Secretary said last night. He said that he would consider various ways of giving effect to his decision. That includes even the possibility that a decision to withhold information following the use of Executive override might take place along the lines of other countries that use Executive override, such as introducing it by order. Of course, there is no provision for that in new clause 6.
It would be wrong to send a signal to the other place that new clause 6 in any way reflects the Government's considered view on how they might exercise in practice their Executive override provisions. Because the new clause is so obnoxious, it would be reasonable to withdraw it now. It no longer reflects the Home Secretary's thinking.
In his remarks tonight, the Home Secretary has stepped back a little from what he said last night.

Mr. Straw: indicated dissent.

Mr. Maclennan: With respect, he has. Last night, the Home Secretary made it absolutely plain that he was prepared to consider other ways of giving effect to an Executive override, including introducing it by order. I took him at his word, as I am sure he intended the House to do. I realise that events were happening and minds were moving quickly; as I said, that is welcome. However, I hope that he will not suggest that the structure of new clause 6 is the one he had in mind.

Mr. Straw: What I said last night is on the record and there it remains; I do not see the point of going over yesterday's debate. I do not resile from what I said yesterday. Of course we shall consider the points that were made, and of course new clause 6 will be amended in the other place. However, I have said why I think it important that the Bill goes to the other place containing not only our amendments to clause 13, but the principle of an Executive override. It would be disingenuous to imply that the absence of that concept in the Bill when it goes to the Lords means that it is not the Government's recommendation that, subject to certain clear limitations, it should form part of the Bill.

Mr. Maclennan: I do not resile from the points that I have already made. The new clause sets out a scheme that is not conformable with the Secretary of State's intention.
A more fundamental point is that many Members of Parliament, on both sides of the House, take the view that an Executive override provision is undesirable. We would prefer that it not be proceeded with at all and that the decision be left to the commissioner. For that reason, I hope that the House will not give its assent to new clause 6. The other amendments could be broadly conformable with a scheme that we could live with, but new clause 6 is unacceptable. I hope that the House will decide that it makes more sense not to support the new clause. To do so would not frustrate in any way the Home Secretary's wishes.

Mr. Radice: For those of us who have argued for the New Zealand model of having an Executive override operated at high level and based on collective decision making, which I understand the Government have accepted, it would be logical to support new clause 6, provided that the Home Secretary gives assurances that it will be amended as promised last night and reiterated this evening, and that the Government will seriously consider putting the principle of collective decision making in the Bill, where appropriate.

Mr. Greenway: It was obvious throughout the Committee proceedings that this part of the Bill would have to be altered. Some of the amendments that the

Home Secretary has now tabled, especially Nos. 64 and 65, are the very amendments that his hon. Friend the Under-Secretary of State resisted in Committee. We are prepared to offer a word of welcome to, and our thanks for, those amendments.
However, as the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) points out, the fact remains that, with new clause 6, we are being asked to signal the acceptability to the House of the concept of Executive override or veto. In more than four months' deliberations—indeed, until yesterday—that concept had never been discussed or debated. It must be obvious to the Home Secretary that he is asking us not only to send a Bill to the other place containing a clause that he accepts is defective—hardly a satisfactory state of affairs—but to underpin a concept that we have not discussed, while failing to meet our argument that the commissioner should have the final say on whether information is released.
Even without new clause 6, and even if the Home Secretary accepted what I believe to be the considered view of the House, if the commissioner makes a ruling with which any Minister feels uncomfortable, there is still a right of appeal to a tribunal. Following the appeal to a tribunal, there is a right of appeal through judicial review on the question whether the information should be released.
Anyone outside this place listening to our deliberations might begin to wonder why the Home Secretary should want to include in the Bill provisions that effectively leave the final say with Ministers. They might think that national security might require that the Minister has the final say. The answer would be that national security is exempted in the Bill anyway. Other considerations might be defence of the realm or confidentiality in respect of major inquiries and investigations.
I shall not detain the House with the list. I simply make the point that every valid argument that anyone could advance as to why a ministerial override is necessary falls because every clause by way of exemption covers all the eventualities that we have ever been asked to consider as issues that would justify a ministerial veto.
In an earlier debate, I asked one of the Ministers—I think that it was the Home Secretary himself—whether he could give an example in which a Minister would be required to override the release of information and which had underpinned Government policy making, and he could not give me one. The only examples about which we have heard during this debate and throughout Second Reading and Committee are all covered in the Bill by way of exemption.
We have devoted many hours to consideration of these matters over the past three or four months, during which I led for the Opposition in Committee, and have done so with an open and constructive approach. I am sure the Under-Secretary would agree that that characterised the Committee stage. However, we have ended up at this late stage with an admission by the Home Secretary not just that the Bill is defective, but that the scheme of affairs that he brought to the House on Second Reading all those weeks ago was defective at that stage as well.
The Home Secretary's contortions on the measure make him appear quite ridiculous. In recent weeks, he has gained something of a reputation for being a political Houdini. On this occasion, he has tied himself up in knots.


It would be far better if we sent the Bill to the other place without new clause 6, to give him and his hon. Friends the opportunity to introduce measures that have been thought through for proper consideration.

Dr. Tony Wright: I dissociate myself from those last remarks. If one thing has distinguished our deliberations over the past two days and previously, it has been the way in which the Home Secretary has been prepared to engage with the debate and respond to concerns that have been raised. I shall go further and say publicly what I said to him privately this evening: he is probably the only Minister in the Government who could have engaged with the House of Commons in quite the way that he did last night. He displayed an openness and a willingness to appreciate different points of view. The House does not usually conduct its business in that way. All of us who have been, in Whips' language, difficult should be the first to acknowledge that.
11.30 pm
Deciding who has the last word has lain behind most of our discussions on the Bill. Will a Minister, a public official, who has a potential vested interest, or an independent person have the last word? For many of us, the credibility and integrity of the Bill depended on the answer.
We have made progress on that fundamental issue. The Bill that we are considering represents progress when compared with the original draft and we have been told that further progress will be made in another place. We must record those achievements. We must also record the fact that the question about the last word remains. Why do Ministers believe that they need a comfort blanket and that they cannot relinquish the final word to an independent commissioner? That is not a rhetorical question; I simply do not know the answer. That is why we wanted to veto the veto. The case for the veto has not been made. That is fundamental because of the way in which the Bill is constructed.
In a spirit of reasonableness, and
in the reasonable opinion of a qualified person
I was prepared to consider a method that would tackle my fundamental objections through the approach that the Government clearly wanted to press. The Home Secretary has moved some way down that route. However, I want to press him a little harder.
A compromise would have to contain the three ingredients that I mentioned earlier. First, there would have to be a collective Cabinet decision. Secondly, the scope of the veto would have to be substantially narrower. It should resemble the Irish legislation, under which certificates can be served, and which covers key state interests. Thirdly, the veto would have to be removed from local authorities. I want the Home Secretary to assure me that those three conditions will be reflected in the altered new clause 6.
I should like to believe that we have reached a common position. However, I fear that that has not yet happened. The question about the last word remains. I am willing to be as emollient as possible, but I fear that if the Home Secretary can say no more tonight, I cannot support new clause 6 in its current form.

Mr. Shepherd: The hon. Member for Cannock Chase (Dr. Wright) has played a magnificent part in the proceedings on this Bill. I am therefore diffident about any split in approach. As Chairman of the Public Accounts Committee, he marshalled the arguments—

Mr. David Davis: Public Administration Committee.

Mr. Shepherd: As Chairman of the Public Administration Committee, he brought the arguments together. We are considering new clause 6. I heard the expression "Executive override" for the first time last night. I thought to myself, "What does it mean?" For a moment, in the lull that occurs in debates, I wondered whether it was a new title by Jeffrey Archer. I see that the distinguished and hon. Member for Hampstead and Highgate (Ms Jackson) is present. No doubt she has experience of some of the wilder reaches—

Ms Glenda Jackson: Not of Jeffrey Archer. [Laughter.]

Mr. Shepherd: I do not want to have too big a josh at Lord Archer's expense, but the concept of Executive override, which the Home Secretary introduced to the debate last night, should make us pause. What does he mean by Executive override? It sounds awfully grand. It is American, is it not? There is lots of chrome—or Croham—on it, and it is surrounded by outriders and CIA agents: it is presidential. It must appear somewhere in the American constitution, no less. But no—it does not mean anything quite like that. It means, "I shall be judge and jury in my own case." That is all. It is a simple concept. No, no, no—I shall not let the Home Secretary do this.
Anything that touches on the heart of the state is excluded from the Bill—remember that—and my hon. Friend the Member for Ryedale (Mr. Greenway) made the best of all points on that: all the instances given by the Home Secretary last night in his 40-minute exegesis on new clause 6 revolved round the health of General Pinochet. The right hon. Gentleman said that, prospectively, had the Bill been in existence—it is not: remember that also—and had the commissioner ordered the release of Pinochet's medical records, he would have needed an Executive override to ensure that the commissioner could not receive them.
All that was prospective and fantastical. Across the Floor of the House and from a sedentary position, I said, "What about data protection?" The Home Secretary said, "No one brought that to my attention." I asked myself, "Is that naivety? Was the Department unaware of it?" Of course no one would have brought data protection to his attention: the Data Protection Act 1998 did not come into force until 1 March, so that was not a weighing consideration. Those provisions are now in place and, one day, the Bill will also be in place. Then there will be a tussle between the instances that the right hon. Gentleman gave yesterday, as if they somehow reinforced his argument.
When I say that the argument floats, this is what I mean. We already have a belt-and-braces approach, and the Home Secretary can seek judicial review if the Government do not like a decision on these things, which are not very important matters in terms of the security of


the state: he can even refer a matter to a tribunal. Those are the stages that relate to the little request from Mrs. Brown in Aldridge-Brownhills to see some information. The new clause has nothing to do with all the excluded matters. It was tabled only a few days ago, after all the consultative processes, all the listening by the Home Secretary and all the work by the Home Office unit. Let us consider it again.
Executive override! I am so dazzled by it that I should perhaps accept it as a bargain. But what is in it? Who are these Executive overriders? The Home Secretary suggests that the Labour, Conservative and Liberal Democrat parties—in other words, the House of Commons—should support the new clause going forth to the Lords unamended, containing all these contentions and propositions. That is absurd, and we know that it is because the Home Secretary has told us that the new clause will soon look nothing like this.

Mr. Greenway: It is defective.

Mr. Shepherd: Absolutely. As my hon. Friend says, it is defective. Yet I can see that we have often been nodding donkeys: we agree on the balance of the argument and say, "The Home Secretary is a good and humane man. Is it not rather exciting to have an Executive override? We must go along with the proposition." That is what we are being invited to do. With the best of intentions towards the prospective mayor of London, did anyone think that, under a freedom of information Bill, we would pass to local councillors the right to cut off our access to information?
I do not want to over-dramatise the point; I want to look at the process involved in the Bill. Just a few days ago, at the end of last week, new clause 6 emerged from all the process of generous thought that produced the Labour party's flagship Bill. The construction of yesterday's debate enabled the Home Secretary to lecture us for 45 minutes on its intent, but we did not have a debate on it, although it was pertinent to the general debate.
The hour is late. I know the devices: I have sat on the Government Benches, and I have heard similar arguments—in truth, we all have. Because of that, we are now having a muted and half-baked debate. Few Members are rising to speak—although, having been through the Division Lobbies with members of all parties, I know of their deep discontent with the Bill. All parties—mine today, but yesterday, and for a long yesterday, the party of government—are frustrated about the fact that we are marched through Lobbies, and that the policy, indeed the polity, is determined by a majority vote in one of the Houses of our Parliament.
Do we really want to deliver a defective Bill that shows just how craven we are? We have not had a proper debate in this place, although we have heard the Home Secretary's arguments in great detail and we have read Hansard. The clause sends a very weak signal about who we are. Moreover, it does not send a strong enough signal that the House expects the Bill, and the clause in particular, to be radically altered.
I know that many Labour Members feel that the clause should be amended. I feel that it should be deleted: it is as simple as that. There is no—what were we told about?—dancing by angels on the pins of needles, or pins of

needles on the heads of angels. The fact is that we have not had a proper or serious debate on Executive override. All it stands for, in the end, is "I shall be judge and jury in these matters that do not even touch on the intimate security of the state and the intimate well-being of the defence and protection of this island."

Dr. David Clark: Like my hon. Friend the Member for Cannock Chase (Dr. Wright), I am grateful to the Home Secretary for the way in which he listened to the debate yesterday evening. I feel that we have had a good debate on new clause 6, and I think that the Home Secretary showed his stature yesterday by being prepared to open his mind. Indeed, I understand from what he has said this evening that he has gone a stage further.
I do not like the Executive override, but, given that there is to be an override on the part of Ministers, I disagreed with the previous arrangement for two reasons. First, it was the result of a decision by an individual Minister. I felt that, if there was to be an objection, it should be made on the basis of a formal collective arrangement. I also felt that the objection should be in the Bill, and should not be subject to some code or ministerial guideline. If the Home Secretary catches your eye yet again, Mr. Deputy Speaker, perhaps he will confirm that he intends, if possible, to specify in the Bill a way in which any override would be exercised by Cabinet Ministers in that formal collective way.

Mr. Quentin Davies: The Home Secretary, in his speech moving amendment No. 64 and speaking to new clause 6, essentially invited the House to engage with him in a slightly complex negotiation. I think that it is right for the House to be alert and to count our change pretty carefully when we receive such an offer at this stage in a Bill's consideration. I say that despite the considerable charm of manner that the Home Secretary has displayed to the House in the past two days. Judging by his body language and expression in this debate, the effort of that charm of manner may be beginning to tell. We must be none the less grateful for what we have had up to now.
What we must do, however, is to make a distinction between manner and substance. The House's concern must be with the substance, and also with procedure. We are confronted with great complexity of substance and singular convolution of procedure. What essentially has happened is this. First, the Government made some high-sounding promises at the general election and produced a White Paper which, as we all know, was pretty encouraging. Secondly, the Government introduced the Bill, which to say the least was extremely discouraging, since the great bulk of the substance promised in the White Paper had been removed. Thirdly—under pressure largely from Labour Back Benchers but also from Opposition Members—the Home Secretary made a concession, which was to remove clause 48 and to substitute for the discretionary disclosure recommendation the principle that the commissioner can instruct that disclosure should occur. Fourthly, the Home Secretary introduced his new clause 6, which effectively negates that concession by allowing it to be overridden by the mechanism of Executive override. Fifthly, after upsetting everyone by negating his own concession, the right hon. Gentleman offered a thimbleful of new concessions—which amount to changing the reference


from Minister of the Crown to Cabinet Minister, while not acceding to the request of Labour Back Benchers and Opposition Members to include the very different concept of collective Cabinet responsibility, which has a constitutional significance of its own.
The right hon. Gentleman's action has been a wonderful example of giving something with the right hand, but taking it away with the left. We have to be very careful before we continue in this vein, and must wonder about what type of deal we will ultimately be left with.
I think the solution is extremely clear. There would have been consensus among hon. Members on both sides of the House in support of the right hon. Gentleman if only he had left matters at the third stage—if he had removed clause 48 and replaced it with a right for the Information Commissioner to give an instruction. Why could he not leave it there? If he did that, we would all be extremely happy. By negating his own concession, he can only arouse the worst suspicions about the Government's real intentions and good faith in the matter.

Mr. Fisher: I do not think the hon. Member for Grantham and Stamford (Mr. Davies) fully understands what happened last night or the current state of the Bill. As my hon. Friend the Member for Cannock Chase (Dr. Wright) said when speaking to Government amendment No. 64, the final say in all freedom of information legislation is crucial. Although every piece of freedom of information legislation has exemptions, barriers and caveats—those are in the nature of this type of legislation—the final say of the arbiter, who is the commissioner, is crucial. That is why so many Labour Members and Opposition Members felt that new clause 6, with its ministerial veto, was so wrongheaded and offensive.
Let us be clear about the veto. It was to override the final decision of the Information Commissioner. That made it deeply offensive. It was remarkable, proper and admirable that the Home Secretary listened to our criticisms in a good debate last night. While he was on his feet, he redrafted his approach to the issue and accepted the idea of a compromise, suggested by my right hon. Friend the Member for North Durham (Mr. Radice) and other Labour Members, between those of us who wanted to leave everything to the Information Commission and his belief that some form of ministerial last word was essential. The obvious compromise was the New Zealand model. The Home Secretary went a long way towards that last night. What he is offering the House is not as strong as the New Zealand model, which has greater in-built ritual and more formality. That ritual is one reason why, since the veto became a collective responsibility, it has not been used in New Zealand.

Mr. Shepherd: That point interests me and should interest the House. New Zealand is governed by a coalition, as Scotland will be. The Cabinet override is an important check, because the tensions that are manifested through party make it very difficult to impose an agreed veto across a coalition.

Mr. Fisher: The hon. Gentleman is mistaken, because the change from a decision by a single Minister—the original system in New Zealand that was so abused in the

first year—to collective responsibility happened in 1987. There have been single-party Governments since then. The important point is the nature of the agreement. It has nothing to do with the balance of power in Parliament. My right hon. Friend the Home Secretary had already gone a long way and went further tonight by saying that the provision would be in the Bill—or at least that he would try to put it in the Bill. Given the distance that he has moved in the past 24 hours, if he says that he is going to do that, the House owes it to him to have some confidence in him.
However, the praise that is rightfully the Home Secretary's because of the way in which he has moved makes it all the more baffling that he is now asking the House to vote for a clause that he has turned on its head, having promised us something very different. It would be extraordinary for us to vote for a clause that the House objects to and that the Home Secretary recognises is wholly deficient.
The Home Secretary made an interesting comment in his opening remarks. I made a careful note of his words. He said that the Bill should go to the other House properly reflecting the changes that we have made. We have not yet made the changes that the Home Secretary mentioned last night, but he knows that, because of the good will that he engendered last night, the whole House wants those changes to be made. The will of the House is that we should introduce a collective responsibility to minimise the extent of individual ministerial vetoes. If we vote for new clause 6, the Bill will not go to the other House reflecting those changes, but precisely the opposite.
I understand the Home Secretary's political problem, but we are not sending a clear message to the other House. I have complete confidence in my right hon. Friend delivering on his promises of last night and today and, I hope, making them even stronger. They need strengthening in some areas—for example, in respect of local authorities. However, I cannot vote for a clause that the whole House will be glad to see the back of and that, thanks to the Home Secretary, we shall see the back of.

Mr. Hawkins: The official Opposition will support the cross-party group's amendment No. 5, and oppose Government new clause 6, for the reasons set out by my hon. Friends the Members for Ryedale (Mr. Greenway), for Grantham and Stamford (Mr. Davies) and for Aldridge-Brownhills (Mr. Shepherd).
History repeats itself first as tragedy, then as farce. The "Yes, Minister" scriptwriters once produced an episode called "The Right to Know". Tonight, the House should say, "No, Minister."

Mr. Dominic Grieve: I listened carefully to what the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) said, and I agree with him, but one matter remains untouched. According to the procedures of the House—and if the Government so chose—it would be perfectly possible for this Report stage to be adjourned. The House could reconvene, at short notice and by agreement between the parties, to debate a replacement to new clause 6 that covered the points raised by the Home Secretary in yesterday's debate.
I for one have some sympathy with some of the problems encountered by the Home Secretary and the Government over these matters. However, I have very


little sympathy with legislating in this fashion. We should not send to the other place a Bill that is totally unsatisfactory and which contradicts what the Government intend on one important matter.
I wish that we could improve the House's procedures so that in future we could legislate properly. The Government have admitted that the Bill is unsatisfactory, and we should not send it on to another place as it stands.

Mr. Straw: I shall respond briefly to the points made in the debate. I can tell the hon. Member for Ryedale (Mr. Greenway) that a very small area of Government activity is excluded from the Bill, and that includes matters relating to the royal family and the security and intelligence agencies.
One way or another, the rest of Government activity is covered by the Bill, including many aspects to do with safeguarding national security. The hon. Gentleman suggested that, according to the examples I gave, those aspects would always be covered by the exemptions. That is true, but, over the past two days, I have tried to explain that, when a Minister claims an exemption or exception for a piece of information—in other words, when he claims that it should not be disclosed—and when the commissioner and tribunal agree that it should not be disclosed under the exemptions and exceptions in part II, the Minister is still under a duty to consider, under the mechanism of clause 13, whether that information should or should not be disclosed.
The effect of clause 13 is felt right through the Bill, except in respect of matters mentioned in one of its subsections, and that subsection was the subject of amendment No. 1, which the House discussed yesterday. That is why the mechanism of clause 13 is so important.
My hon. Friend the Member for Cannock Chase (Dr. Wright) said that any compromise on what has been called Executive override depended on three key conditions. I enjoyed the rather delicious and apposite description of Executive override by the hon. Member for Aldridge-Brownhills (Mr. Shepherd), with his references to paraphernalia out of the American constitution, chrome and Croham.
The three conditions raised by my hon. Friend the Member for Cannock Chase were that there should be a collective Cabinet decision, that the area of veto should be made narrower than at present, and that local authorities should be removed altogether from the provisions.
If the House agrees new clause 6, I have already made it clear that, when the Bill goes to the other place, the new clause's provisions will have been amended to ensure that the decision will be made by a member of the Cabinet. There is already a definition of that in clause 23.
12 midnight
Secondly, I can answer my right hon. Friend the Member for South Shields (Dr. Clark) on a collective Cabinet decision. I said yesterday that that would be written into the code to Ministers, which is a public document. I mentioned the possible exception for quasi-judicial functions. I have considered the matter further today and I am happy to answer yes to my right hon. Friend's question. If it is at all possible—I will be happy to discuss this with him outside the House—we

will write the requirement of collective decision making into the Bill. If it is not possible for constitutional law reasons, and after serious advice from parliamentary counsel, I will explain that to him outside as well as inside the House.
I hope that that deals with the first limb of the argument of my hon. Friend the Member for Cannock Chase. His second limb was that the area of veto should be narrower. I think that he will accept that I did not give undertakings on that. They are obviously a matter for debate. I do not give undertakings in that respect, although I am open to argument on it—no more than that.
On the matter being removed from local authorities altogether, I repeat that I understand the arguments and promise that we will actively consider the idea. I hope that it will be well understood that we need to secure a collective Cabinet decision on the matter and that we need to consult the local authorities. However, I understand my hon. Friend's argument. To some extent, it fits in with his second point, which is that the level of decisions and, therefore, of documents and information held by local authorities is not of a sufficiently high pitch to justify an Executive override, to paraphrase his argument.
The other arguments concerned whether it is right to vote on the new clause tonight. The simple truth is that whether we include new clause 6 or not, the Bill as it is transmitted to the other place will not completely reflect the decisions of the House, given the undertakings that I made yesterday.
The hon. Member for Aldridge-Brownhills (Mr. Shepherd) seemed—

Mr. Shepherd: rose—

Mr. Straw: I will not accept an intervention from the hon. Gentleman—

Mr. Shepherd: You never do!

Mr. Straw: I always do. I would say to the hon. Gentleman, gently and with great affection, that he should not seek to have it both ways: to complain that we have not listened to an argument and then to complain about the consequences when we have listened and have agreed to amend the Bill.
The truth is that, given my undertakings yesterday, the Bill—whether or not new clause 6 is in it—does not wholly reflect the opinion of the House. However, it is my judgment, as I explained to the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), that the new clause is better in the Bill because then the complete scheme of change in principle—the change from discretionary disclosure to a power to the commissioner and a duty to abide by that save for the circumstances of Executive override—is there. Amending the new clause will not disturb the principles, which will be there. That is a less disingenuous way to present the Bill to the other place than to leave out new clause 6.
I hope that the undertakings that I have given are satisfactory and I urge the House to support the amendments and the new clause.

Amendment agreed to.

Clause 50

APPLICATION FOR DECISION BY COMMISSIONER

Amendments made: No. 65, in page 27, line 26, at end insert—
'() Subsections (5) and (6) do not apply in relation to a decision notice which relates to a failure to comply with section 13.'.

No. 66, in page 27, line 27, leave out subsection (7) and insert—
'(7) This section has effect subject to section (Exception from duty to comply with decision notice or enforcement notice).'.—[Mr. Mike Hall.]

Clause 51

INFORMATION NOTICES

Amendment made: No. 67, in page 28, line 32, at end insert—
'(8) In this section "information" includes unrecorded information.'.—[Mr. Mike Hall.]

Clause 52

ENFORCEMENT NOTICES

Amendments made: No. 6, in page 28, line 39, leave out subsection (2).

No. 69, in page 29, line 10, at end insert—
'() Subsections (3)(b) and (4) do not apply in relation to a decision notice which relates to a failure to company with section 13.'.

No. 70, in page 29, line 12, at end insert—
'() This section has effect subject to section (Exception from duty to comply with decision notice or enforcement notice).'.—[Mr. Mike Hall.]

Clause 56

APPEAL AGAINST NOTICES SERVED UNDER PART IV

Amendment made: No. 71, in page 30, line 3, at end insert—
'() Subsection (1) does not confer any right of appeal in relation to a decision notice which relates to a failure to comply with section 13; and subsection (2) does not confer any right of appeal in relation to an enforcement notice which relates to such a failure.'.—[Mr. Mike Hall.]

Schedule 6

FURTHER AMENDMENTS OF DATA PROTECTION ACT 1998

Amendments made: No. 89, in page 64, line 24, at end insert—
'. In section 7 of the Data Protection Act 1998 (right of access to personal data), for subsection (3) there is substituted—
(3) Where a data controller—

(a) reasonably requires further information in order to satisfy himself as to the identity of the person making a request under this section and to locate the information which that person seeks, and
(b) has informed him of that requirement,

the data controller is not obliged to comply with the request unless he is supplied with that further information.".'.

No. 90, in page 64, line 26, leave out—
'the Data Protection Act 1998'
and insert "Act".—[Mr. Mike Hall.]

Clause 74

POWER TO AMEND OR REPEAL ENACTMENTS PROHIBITING DISCLOSURE OF INFORMATION

Amendment made: No. 72, in page 36, line 40, leave out—
'in pursuance of a decision under section'.—[Mr. Mike Hall.]

Clause 75

OFFENCE OF ALTERING ETC. RECORDS WITH INTENT TO PREVENT DISCLOSURE

Amendment made: No. 73, in page 37, line 18, after "section 1", insert "or 13".—[Mr. Mike Hall.]

Clause 77

COPYRIGHT

Amendment made: No. 74, in page 37, line 39, leave out Clause 77.—[Mr. Mike Hall.]

Clause 78

DEFAMATION

Amendment made: No. 75, in page 38, leave out lines 3 and 4 and insert—
'under section 1 or 13'.—[Mr. Mike Hall.]

Clause 81

ORDERS AND REGULATIONS

Amendments made: No. 76, in page 38, line 34, leave out from beginning to "section" and insert—
'A statutory instrument containing (whether alone or with other provisions)—
(a) an order under'.

No. 77, in page 38, line 34, after " 4,", insert " 6(3) or (7),".

No. 78, in page 38, line 34, leave out from " 74" to "has" in line 35 and insert—
'or
(b) regulations under section 9(3),
shall not be made unless a draft of the instrument'.

No. 79, in page 38, line 37, leave out "containing" and insert—
'which contains (whether alone or with other provisions)'.

No. 80, in page 38, line 38, after " 3(1)", insert—
'or (Exception from duty to comply with decision notice or enforcement notice)(4) or (6)'.

No. 81, in page 38, line 38, leave out "or 6(3) or (7)".

No. 82, in page 38, line 39, after "Act", insert—
'not specified in subsection (2)(b)'.

No. 83, in page 38, line 40, at beginning insert—
'and which is not subject to the requirement in subsection (2) that a draft of the instrument be laid before and approved by a resolution of each House of Parliament,'.

No. 84, in page 39, line 1, after " 4", insert "or 6(7)".—[Mr. Mike O'Brien.]

Clause 82

INTERPRETATION

Amendments made: No. 85, in page 39, line 26, after first " "information" ", insert—
'(subject to sections 51(8) and 74(2))'.

No. 86, in page 39, leave out lines 30 and 31.

No. 87, in page 39, line 32, leave out from first "Minister"" to end of line 35 and insert—
'includes the First Minister and deputy First Minister in Northern Ireland'.

No. 88, in page 40, line 2, at end insert—
"transferred matter", in relation to Northern Ireland. has the meaning given by section 4(1) of the Northern Ireland Act 1998;'.—[Mr. Mike Hall.]

New Clause 6

EXCEPTION FROM DUTY TO COMPLY WITH DECISION NOTICE OR ENFORCEMENT NOTICE

'.—(1) A decision notice or enforcement notice which relates to a failure to comply with section 13 in relation to any one or more requests for information shall cease to have effect if, not later than the twentieth working day following the day on which the notice was given to the public authority, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that the authority did not fail to comply with section 13 in relation to that request or those requests.

(2) Where the accountable person gives a certificate to the Commissioner under subsection (1) in relation to a decision notice, the accountable person shall, on doing so or as soon as reasonably practicable after doing so, inform the person who is the complainant for the purposes of section 50 of the reasons for his opinion.

(3) The accountable person is not obliged to provide information under subsection (2) if, or to the extent that, compliance with that subsection would involve the disclosure of exempt information.

(4) In this section "the accountable person"—

(a) in relation to a government department, means any Minister of the Crown,
(b) in relation to a Northern Ireland department. means the Northern Ireland Minister in charge of that department,
(c) in relation to the House of Commons or the National Audit Office, means the Speaker of that House,
(d) in relation to the House of Lords, means the Clerk of the Parliaments,
(e) in relation to the Northern Ireland Assembly or the Northern Ireland Audit Office, means the Presiding Officer of that Assembly,
(f) in relation to the National Assembly for Wales or an Assembly subsidiary as defined by section 99(4) of the Government of Wales Act 1998, means the Assembly First Secretary,
(g) in relation to the Greater London Authority or a functional body within the meaning of the Greater London Authority Act 1999, means the Mayor of London,
(h) in relation to a local authority or, in Northern Ireland, a district council within the meaning of the Local Government Act (Northern Ireland) 1972, means a member, committee or sub-committee of that local authority or district council designated by the Secretary of State by order,
(i) in relation to any public authority not falling within paragraph (b), (e) or (h) whose functions are exercisable wholly or mainly in or as regards Northern Ireland and relate wholly or mainly to transferred matters, means the First Minister and deputy First Minister in Northern

Ireland acting jointly, or any Northern Ireland Minister nominated in relation to that public authority by those Ministers so acting,
(j) in relation to any public authority specified in Part II of Schedule 1 which is not a local authority but whose members include members of local authorities, means—

(i) a committee or sub-committee of the public authority designated by the Secretary of State by order, or
(ii) a member of a local authority who is also a member of that public authority and is designated by the Secretary of State by order, and
(k) in relation to any other public authority, means a Minister of the Crown designated by the Secretary of State by order.

(5) An order under subsection (4)—

(a) may designate specified persons or persons falling within a specified description,
(b) may designate different persons in relation to the same authority in relation to different cases, and
(c) may make any designation subject to conditions.

(6) The Secretary of State may by order provide for the exercise of the functions conferred by subsection (1) on the accountable person (whether designated by subsection (4) or by an order under that subsection) in the event of any vacancy in the office held by the accountable person or in the event of the illness or absence of the accountable person.

(7) In this section—
local authority" means—

(a) a local authority within the meaning of the Local Government Act 1972,
(b) the Common Council of the City of London, or
(c) the Council of the Isles of Scilly;

"working day" has the same meaning as in section 9.'.—[Mr. Mike Hall.]

Brought up, and read the First time.

Motion made, and Question put, That the clause be read a Second time:—

The House divided: Ayes 302, Noes 173.

Division No. 151]
[12.6 am


AYES


Ainger, Nick
Brown, Russell (Dumfries)


Ainsworth, Robert (Cov'try NE)
Browne, Desmond


Anderson, Donald (Swansea E)
Buck, Ms Karen


Anderson, Janet (Rossendale)
Burden, Richard


Armstrong, Rt Hon Ms Hilary
Burgon, Colin


Atherton, Ms Candy
Butler, Mrs Christine


Atkins, Charlotte
Byers, Rt Hon Stephen


Austin, John
Caborn, Rt Hon Richard


Banks, Tony
Campbell, Alan (Tynemouth)


Barnes, Harry
Campbell, Ronnie (Blyth V)


Barron, Kevin
Campbell-Savours, Dale


Bayley, Hugh
Cann, Jamie


Beard, Nigel
Caplin, Ivor


Beckett, Rt Hon Mrs Margaret
Casale, Roger


Begg, Miss Anne
Caton, Martin


Benn, Hilary (Leeds C)
Cawsey, Ian


Bennett, Andrew F
Chapman, Ben (Wirral S)


Benton, Joe
Chaytor, David


Berry, Roger
Clapham, Michael


Best, Harold
Clark, Rt Hon Dr David (S Shields)


Blackman, Liz
Clark, Dr Lynda (Edinburgh Pentlands)


Blears, Ms Hazel



Blizzard, Bob
Clark, Paul (Gillingham)


Boateng, Rt Hon Paul
Clarke, Charles (Norwich S)


Bradley, Keith (Withington)
Clarke, Tony (Northampton S)


Bradley, Peter (The Wrekin)
Clelland, David


Bradshaw, Ben
Coaker, Vernon


Brown, Rt Hon Nick (Newcastle E)
Coffey, Ms Ann






Coleman, Iain
Hutton, John


Colman, Tony
Iddon, Dr Brian


Connarty, Michael
Illsley, Eric


Cook, Rt Hon Robin (Livingston)
Ingram, Rt Hon Adam


Cooper, Yvette
Jackson, Ms Glenda (Hampstead)


Corston, Jean
Jackson, Helen (Hillsborough)


Cranston, Ross
Jamieson, David


Cryer, John (Hornchurch)
Jenkins, Brian


Cummings, John
Johnson, Alan (Hull W & Hessle)


Cunningham, Rt Hon Dr Jack (Copeland)
Johnson, Miss Melanie (Welwyn Hatfield)


Cunningham, Jim (Cov'try S)
Jones, Rt Hon Barry (Alyn)


Curtis-Thomas, Mrs Claire
Jones, Helen (Warrington N)


Darling, Rt Hon Alistair
Jones, Martyn (Clwyd S)


Darvill, Keith
Jowell, Rt Hon Ms Tessa


Davey, Valerie (Bristol W)
Kaufman, Rt Hon Gerald


Davidson, Ian
Keeble, Ms Sally


Davies, Rt Hon Denzil (Llanelli)
Keen, Alan (Feltham & Heston)


Davies, Geraint (Croydon C)
Keen, Ann (Brentford & Isleworth)


Dawson, Hilton
Kemp, Fraser


Dean, Mrs Janet
Kennedy, Jane (Wavertree)


Denham, John
Khabra, Piara S


Dismore, Andrew
Kidney, David


Dobbin, Jim
Kilfoyle, Peter


Donohoe, Brian H
King, Andy (Rugby & Kenilworth)


Doran, Frank
King, Ms Oona (Bethnal Green)


Dowd, Jim
Ladyman, Dr Stephen


Eagle, Angela (Wallasey)
Laxton, Bob


Eagle, Maria (L'pool Garston)
Lepper, David


Edwards, Huw
Leslie, Christopher


Efford, Clive
Levitt, Tom


Ellman, Mrs Louise
Lewis, Ivan (Bury S)


Ennis, Jeff
Lewis, Terry (Worsley)


Field, Rt Hon Frank
Liddell, Rt Hon Mrs Helen


Fitzpatrick, Jim
Linton, Martin


Fitzsimons, Lorna
Lock, David


Flint, Caroline
McAvoy, Thomas


Follett, Barbara
McCabe, Steve


Foster, Michael J (Worcester)
McDonagh, Siobhain


Foulkes, George
Macdonald, Calum


Galloway, George
McFall, John


Gapes, Mike
McGuire, Mrs Anne


Gardiner, Barry
McIsaac, Shona


George, Bruce (Walsall S)
McKenna, Mrs Rosemary


Gilroy, Mrs Linda
McNulty, Tony


Godman, Dr Norman A
MacShane, Denis


Goggins, Paul
Mactaggart, Fiona


Golding, Mrs Llin
McWalter, Tony


Gordon, Mrs Eileen
Mallaber, Judy


Griffiths, Jane (Reading E)
Marsden, Gordon (Blackpool S)


Griffiths, Nigel (Edinburgh S)
Marsden, Paul (Shrewsbury)


Griffiths, Win (Bridgend)
Marshall, David (Shettleston)


Grocott, Bruce
Martlew, Eric


Grogan, John
Maxton, John


Hain, Peter
Meacher, Rt Hon Michael


Hall, Mike (Weaver Vale)
Merron, Gillian


Hall, Patrick (Bedford)
Michie, Bill (Shef'ld Heeley)


Hamilton, Fabian (Leeds NE)
Milburn, Rt Hon Alan


Hanson, David
Miller, Andrew


Heal, Mrs Sylvia
Moffatt, Laura


Healey, John
Moonie, Dr Lewis


Henderson, Doug (Newcastle N)
Moran, Ms Margaret


Hepburn, Stephen
Morley, Elliot


Heppell, John
Morris, Rt Hon Ms Estelle (B'ham Yardley)


Hesford, Stephen



Hill, Keith
Mountford, Kali


Hodge, Ms Margaret
Mullin, Chris


Hoey, Kate
Murphy, Denis (Wansbeck)


Hoon, Rt Hon Geoffrey
Murphy, Jim (Eastwood)


Hope, Phil
Murphy, Rt Hon Paul (Torfaen)


Howarth, Alan (Newport E)
Naysmith, Dr Doug


Howarth, George (Knowsley N)
Norris, Dan


Howells, Dr Kim
O'Brien, Bill (Normanton)


Hughes, Kevin (Doncaster N)
O'Brien, Mike (N Warks)


Humble, Mrs Joan
Olner, Bill


Hurst, Alan
O'Neill, Martin





Organ, Mrs Diana
Squire, Ms Rachel


Osborne, Ms Sandra
Starkey, Dr Phyllis


Palmer, Dr Nick
Steinberg, Gerry


Pearson, Ian
Stevenson, George


Pendry, Tom
Stewart, David (Inverness E)


Perham, Ms Linda
Stewart, Ian (Eccles)


Pickthall, Colin
Stinchcombe, Paul


Pike, Peter L
Stoate, Dr Howard


Plaskitt, James
Strang, Rt Hon Dr Gavin


Pollard, Kerry
Straw, Rt Hon Jack


Pond, Chris
Stringer, Graham


Pope, Greg
Stuart, Ms Gisela


Pound, Stephen
Sutcliffe, Gerry


Prentice, Ms Bridget (Lewisham E)
Taylor, Rt Hon Mrs Ann (Dewsbury)


Primarolo, Dawn



Prosser, Gwyn
Taylor, Ms Dari (Stockton S)


Quinn, Lawrie
Taylor, David (NW Leics)


Radice, Rt Hon Giles
Temple-Morris, Peter


Rammell, Bill
Thomas, Gareth (Clwyd W)


Raynsford, Nick
Thomas, Gareth R (Harrow W)


Reed, Andrew (Loughborough)
Timms, Stephen


Reid, Rt Hon Dr John (Hamilton N)
Tipping, Paddy



Todd, Mark


Robinson, Geoffrey (Cov'try NW)
Trickett, Jon


Roche, Mrs Barbara
Truswell, Paul


Rooker, Rt Hon Jeff
Turner, Dennis (Wolverh'ton SE)


Rooney, Terry
Turner, Dr George (NW Norfolk)


Ross, Ernie (Dundee W)
Turner, Neil (Wigan)


Roy, Frank
Twigg, Derek (Halton)


Ruane, Chris
Twigg, Stephen (Enfield)


Russell, Ms Christine (Chester)
Tynan, Bill


Ryan, Ms Joan
Vaz, Keith


Salter, Martin
Walley, Ms Joan


Sarwar, Mohammad
Ward, Ms Claire


Savidge, Malcolm
Wareing, Robert N


Sawford, Phil
Watts, David


Sedgemore, Brian
White, Brian


Sheerman, Barry
Whitehead, Dr Alan


Shipley, Ms Debra
Wicks, Malcolm


Singh, Marsha
Williams, Rt Hon Alan (Swansea W)


Skinner, Dennis



Smith, Rt Hon Andrew (Oxford E)
Williams, Alan W (E Carmarthen)


Smith, Angela (Basildon)
Wills, Michael


Smith, Rt Hon Chris (Islington S)
Winterton, Ms Rosie (Doncaster C)


Smith, Miss Geraldine (Morecambe & Lunesdale)
Woodward, Shaun



Woolas, Phil


Smith, Jacqui (Redditch)
Worthington, Tony


Smith, John (Glamorgan)
Wright, Anthony D (Gt Yarmouth)


Smith, Llew (Blaenau Gwent)
Wyatt, Derek


Snape, Peter



Soley, Clive
Tellers for the Ayes:


Southworth, Ms Helen
Mr. Don Touhig and


Spellar, John
Mr. Clive Betts.




NOES


Ainsworth, Peter (E Surrey)
Bruce, Ian (S Dorset)


Amess, David
Burnett, John


Arbuthnot, Rt Hon James
Burstow, Paul


Ashdown, Rt Hon Paddy
Butterfill, John


Atkinson, Peter (Hexham)
Campbell, Rt Hon Menzies (NE Fife)


Baldry, Tony



Beggs, Roy
Clappison, James


Bercow, John
Clarke, Rt Hon Kenneth (Rushcliffe)


Beresford, Sir Paul



Blunt, Crispin
Clifton-Brown, Geoffrey


Body, Sir Richard
Clwyd, Ann


Boswell, Tim
Collins, Tim


Bottomley, Peter (Worthing W)
Cook, Frank (Stockton N)


Bottomley, Rt Hon Mrs Virginia
Corbyn, Jeremy


Brady, Graham
Cotter, Brian


Brake, Tom
Cousins, Jim


Brand, Dr Peter
Cran, James


Brazier, Julian
Dalyell, Tam


Breed, Colin
Davey, Edward (Kingston)


Brooke, Rt Hon Peter
Davies, Quentin (Grantham)


Browning, Mrs Angela
Davis, Rt Hon David (Haltemprice)






Day, Stephen
Mahon, Mrs Alice


Donaldson, Jeffrey
Malins, Humfrey


Dorrell, Rt Hon Stephen
Maples, John


Duncan, Alan
Marshall, Jim (Leicester S)


Duncan Smith, Iain
Marshall-Andrews, Robert


Dunwoody, Mrs Gwyneth
Mates, Michael


Faber, David
Michie, Mrs Ray (Argyll & Bute)


Fabricant, Michael
Moore, Michael


Fearn, Ronnie
Morgan, Ms Julie (Cardiff N)


Fisher, Mark
Moss, Malcolm


Flight, Howard
Nicholls, Patrick


Forth, Rt Hon Eric
Norman, Archie


Foster, Rt Hon Derek
Oaten, Mark


Foster, Don (Bath)
O'Brien, Stephen (Eddisbury)


Fowler, Rt Hon Sir Norman
Öpik, Lembit


Fox, Dr Liam
Ottaway, Richard


Fraser, Christopher
Page, Richard


Gale, Roger
Paice, James


Garnier, Edward
Pickles, Eric


George, Andrew (St Ives)
Prentice, Gordon (Pendle)


Gerrard, Neil
Prior, David


Gibb, Nick
Randall, John


Gillan, Mrs Cheryl
Rendel, David


Gorman, Mrs Teresa
Robathan, Andrew


Gray, James
Robertson, Laurence


Green, Damian
Roe, Mrs Marion (Broxbourne)


Greenway, John
Ruffley, David


Grieve, Dominic
Russell, Bob (Colchester)


Hamilton, Rt Hon Sir Archie
Sanders, Adrian


Hammond, Philip
Sayeed, Jonathan


Harvey, Nick
Shephard, Rt Hon Mrs Gillian


Hawkins, Nick
Shepherd, Richard


Hayes, John
Simpson, Alan (Nottingham S)


Heald, Oliver
Simpson, Keith (Mid-Norfolk)


Heath, David (Somerton & Frome)
Soames, Nicholas


Hopkins, Kelvin
Spelman, Mrs Caroline


Howard, Rt Hon Michael
Spring, Richard


Hughes, Simon (Southwark N)
Stanley, Rt Hon Sir John


Hunter, Andrew
Steen, Anthony


Jenkin, Bernard
Stunell, Andrew


Jones, Jon Owen (Cardiff C)
Swayne, Desmond


Jones, Dr Lynne (Selly Oak)
Syms, Robert


Keetch, Paul
Tapsell, Sir Peter


Kennedy, Rt Hon Charles (Ross Skye & Inverness W)
Taylor, Ian (Esher & Walton)



Taylor, John M (Solihull)


Key, Robert
Taylor, Matthew (Truro)


King, Rt Hon Tom (Bridgwater)
Tonge, Dr Jenny


Kirkwood, Archy
Tredinnick, David


Laing, Mrs Eleanor
Trend, Michael


Lait, Mrs Jacqui
Tyler, Paul


Lansley, Andrew
Tyrie, Andrew


Leigh, Edward
Viggers, Peter


Letwin, Oliver
Waterson, Nigel


Lidington, David
Webb, Steve


Lloyd, Rt Hon Sir Peter (Fareham)
Wells, Bowen


Llwyd, Elfyn
Whitney, Sir Raymond


Loughton, Tim
Whittingdale, John


Love, Andrew
Willetts, David


Luff, Peter
Williams, Mrs Betty (Conwy)


Lyell, Rt Hon Sir Nicholas
Willis, Phil


McDonnell, John
Winterton, Mrs Ann (Congleton)


MacGregor, Rt Hon John
Winterton, Nicholas (Macclesfield)


McIntosh, Miss Anne
Wright, Dr Tony (Cannock)


Mackinlay, Andrew
Yeo, Tim


Maclean, Rt Hon David
Young, Rt Hon Sir George


Maclennan, Rt Hon Robert



McLoughlin, Patrick
Tellers for the Noes:


McWilliam, John
Sir Robert Smith and


Madel, Sir David
Jackie Ballard.

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.

New Clause 7

INFORMATION ALREADY DISCLOSED

'.—(1) Information is not exempt information if it is substantially similar to any disclosed information.

(2) In this section "disclosed information" means any information which has been lawfully disclosed in accordance with the provisions of any statutory or other scheme requiring or authorising the disclosure of information within any administration in the United Kingdom, but does not include personal data relating to the individual to whom it was disclosed.

(3) In this section "administration in the United Kingdom" has the same meaning as in section 26.'.—[Mr. Shepherd.]

Brought up, and read the First time.

Mr. Shepherd: I beg to move, That the clause be read a Second time.
The House will see that the new clause is in my name and that of my right hon. Friend the Member for Haltemprice and Howden (Mr. Davis). Its purpose is to learn from the experience of others. It highlights the fact that we may have three freedom of information regimes within this island. The basic, simple, bottom-line argument is that, if a piece of information is available, albeit under the different regime of the devolved authority of the Scottish Parliament, for example, that information should become available in the United Kingdom. Let us remember that we are talking primarily about things such as education and local government, so the processes are common throughout the island. The new clause highlights the fact that Scotland seems, in its White Paper, to be using stronger tests and giving greater accessibility, and it would be profoundly inconsistent if information were available in Scotland that was ruled to be unavailable in England. I suggest that the new clause would strengthen the comity of the island, help us to learn from the experiences of other places and reinforce unity. In a spirit of comity, therefore, I commend the new clause to the House and hope that hon. Members will see value in it and support it.

Mr. Quentin Davies: My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) explained that when drafting the new clause he had in mind the extraordinary anomaly that would arise if information were disclosed under Scottish freedom of information legislation which could not lawfully be disclosed in another part of the United Kingdom. Clearly, that would contribute to the loss of any sense of legitimacy that the Bill will have if it becomes an Act. It would be one of many aspects that will undermine the Bill's credibility.
If, however, the new clause were adopted, it would have a wider impact, because subsection (1) makes it clear that it would be possible to argue that a Department should disclose information if it was substantially similar to information that it, or another Department, had already disclosed. One can easily foresee situations in which a Department might regret having disclosed information or might subsequently seek to detract from the effect of a disclosure, so it might well refuse to confirm its original disclosure or to release other documents that would confirm it.
The new clause would be extremely useful in preventing any Department even from being tempted to do that, because once information had been disclosed, that would be the end of the matter. That would clearly be part


of the jurisprudence, because if all the papers relating to a subject had been disclosed and other information emerged which was substantially similar—to use the phrase in the new clause—that would automatically be disclosed without further let or hindrance. That would clarify matters and increase the scope of freedom of information, and one would like to think that that was the Bill's purpose.

Mr. Mike O'Brien: I entirely agree with the hon. Gentleman's sentiments, and if he will allow me to do so in a moment, I will explain to him precisely how the Bill delivers what he and the hon. Member for Aldridge-Brownhills (Mr. Shepherd) want.

Mr. Davies: In the light of the Minister's assurance, which is one of the more encouraging assurances that he has given during our proceedings, I certainly do not want to keep the House in suspense, so I shall immediately terminate my contribution.

Mr. Hawkins: I would advise my hon. Friend the Member for Grantham and Stamford (Mr. Davies) not to be too confident, because we have not yet heard the Minister. I shall not detain the House for long, but, before the Minister replies, it is only right that Labour Members who have supported the Campaign for Freedom of Information should be aware that it has expressed several concerns.
In particular, the proposed Scottish freedom of information Act will allow Scotland's information commissioner to make legally binding rules on disclosure in the public interest, where harm-tested exemptions are involved. The campaign has shared with Opposition Front-Bench Members its concern about the precise issue that my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and my right hon. Friend the Member for Haltemprice and Howden (Mr. Davis) are raising via the new clause.
The fact that we may have two different regimes is a cause for concern. Now that Scotland has issued its own proposals for freedom of information, which we suggest—so does the Campaign for Freedom of Information—will enable much more information to be released than under the Bill, and which will positively encourage the release of factual information on policy making, we feel that there is a severe danger that the whole system will be brought into disrepute if information that is secret in England is available to the public in Scotland. I do not know whether the Minister will be able to square the circle, but it seems that once again the Government are tying themselves in knots.

Mr. Mike O'Brien: There is no circle to square. The amendment is unnecessary because the Bill would prevent the withholding of information that had been released by another Administration. It is quite simple. A balance must be struck in respect of the public interest in disclosing information in any case where an exemption applies. I can think of no circumstances in which it would be possible to maintain an argument for the public interest in withholding a particular piece of information if, in practice, that information had already been placed in the public domain under the scheme operating under another

Administration. Nor, I suggest, would the Information Commissioner be convinced by any argument that the public interest in withholding minor or trifling details of substantially similar information would justify maintaining the exemption in the public interest. The information would enter the public arena in any case.
The new clause is ambiguously worded. It includes the phrase "substantially similar" information. However, if despite the substantial similarity there were additional information, not already disclosed but which if disclosed would be contrary to the public interest, it should be capable of being lawfully withheld. Therefore, not only is the new clause unnecessary because the Bill will deliver what the hon. Member for Aldridge-Brownhills wants, but the ambiguity in its wording could cause some mischief that I am sure he would not intend. On that basis, I hope that the hon. Gentleman will feel able to withdraw the motion.

Mr. Shepherd: I am grateful to the Minister. I did not intend to delay the House, but he brings an interesting fact to our attention. There may well be different harm tests, so it may be easier to secure information under regimes in Scotland or Wales. That puts a question mark over the purpose of some of the arguments behind the Bill.
I am glad that the Minister believes that the provision I was seeking is already available. I shall read his remarks carefully; in those circumstances, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 10

DUTY TO PUBLISH MANUALS ETC.

'(1) A public authority to which this section applies shall, subject to subsection (2), publish any manuals, instructions, precedents and guidelines used by it for the purpose of—

(a) interpreting any enactment, or
(b) administering any scheme for which the authority is responsible.

(2) A public authority is not required by subsection (1) to publish any exempt information unless the public interest in disclosure outweighs the public interest in maintaining the exemption.

(3) The public authorities to which this section applies are—

(a) any public authority in respect of which an investigation may be made by:

(i) the Parliamentary Commissioner for Administration, the Scottish Parliamentary Commissioner for Administration and the Welsh Administration Ombudsman
(ii) the Northern Ireland Parliamentary Commissioner for Administration (or the Parliamentary Ombudsman for Northern Ireland)
(iii) the Health Service Commissioner for England; the Health Service Commissioner for Scotland; or, in respect of health service bodies in Northern Ireland, the Commissioner for Complaints

(b) any other public authority which has been notified in writing by the Information Commissioner that it is subject to the provisions of this section.'.—[Mr. Shepherd.]

Brought up, and read the First time.

Mr. Shepherd: I beg to move, That the clause be read a Second time.
I feel that I am the night man here. The new clause was discussed in Committee and the Government are well aware of it. It deals with the duty to publish guidelines. I shall not go through the details, but it involves a right that was established under the code of practice. I know that some hon. Members have denigrated the code of practice, but it had that one great value.
The Government said that, as it was drafted in Committee, the new clause was too burdensome. So it was redrafted to meet that valid point and now it applies only to the status quo. It is an important principle, however, and I hope that the Government will agree to accept it.

Mr. David Heath: I certainly do not intend to detain the House, except to say that the Liberal Democrats support the spirit of the new clause and we hope that the Minister will provide a satisfactory answer so that there is no retrogression from the provision under the codes of conduct in respect of bodies that are currently subject to investigation by the Parliamentary Ombudsman or the health service ombudsman.

Mr. Quentin Davies: I hope that the Government will accept the new clause. If they do not accept the new clause, come up with a practically identical proposal, or at least give a firm undertaking to introduce the provision in another place, it will be quite clear that part of their hidden agenda is to regress from the position established by the previous Government's non-statutory code. That would be a pretty horrifying state of affairs.
12.30 am
As each year goes by, it becomes more and more important that the manuals of practice and precedents and guidelines used by various parts of the bureaucracy in interpreting legislation should be made public, because in this country we have the phenomenon of government not merely by secondary as well as primary legislation—which is worrying enough to all Members of the House—but increasingly, by tertiary administration, whereby parts of the bureaucracy interpret the law and have their own practice manuals according to which they tell their staff which way to interpret matters, how to pursue certain types of activity and not others, and so on.
The Revenue works on the basis of practice manuals the whole time. It is thus enormously important that such manuals be made available. They are, in effect—I regret this state of affairs, but we have to acknowledge it—part of the law of the land. Citizens can find that they have transgressed the law without knowing that they have transgressed something which some manual said somewhere was a matter that should be pursued or prosecuted. If these manuals can then be changed, unknown to the public, the citizen might believe that, because the precedents suggest that a certain pattern of activity is accepted, he can quite legitimately arrange his affairs in such a manner—only to find that the law has been changed surreptitiously and that he is now on the wrong side of the law as a result. That is an intolerable situation for any citizen to find himself or herself in, in a free society based on the rule of law.
The new clause is enormously important. It goes beyond even the importance of freedom of information that all the practice manuals and other documents referred

to in the new clause should be incorporated in the Bill. I have to warn the Minister that there will be the most extraordinary degree of concern in this country if the Government cannot accept the new clause, and it is not a matter on which we should be content with any kind of shilly-shallying, of which we have already had far too much from the Treasury Bench in our debates in the last two days.

Mr. Mike O'Brien: I can understand the hon. Gentleman's trying to claim the high ground on this matter, but it was the Conservative Government who refused to publish the immigration guidelines, and it was the present Government who did publish them, after the Home Secretary took up office, so I will take no strictures from the hon. Gentleman or his colleagues on this.
New clause 10 has been amended as a result of the discussion in Committee, but I think not enough, and I am not convinced that it has any real value. The information that is being sought in the new clause is available on request in any event, and it is not as though such manuals were kept secret, because lists are published of the manuals that are published by the Government. Some of those manuals—such as internal directories with numbers for a telephone system that has no gateway for public access—will be of absolutely no public interest; and the requirement that they all be published at great public expense is an unnecessary burden when anyone who seriously wants them would be able to gain access to them. Moreover, if there were a likelihood that the public wanted access, there would be a requirement, under the publication scheme that any public authority must have, to make them public anyway, and that publication scheme must be approved by the Information Commissioner.
On all those grounds, the new clause would be completely unnecessary. The information is available anyway; if it is likely to be requested by the public, it would be in the publication scheme approved by the Information Commissioner; and if it is unlikely to be requested by the public, they could request it anyway if they happened to want it out of interest. There is no restriction on such manuals because the exemption does not apply to them.
There is also a defect and a technical problem with the new clause. It refers to a number of bodies in Scotland and Northern Ireland and responsibility for those bodies rests with the Scottish Parliament and the Northern Ireland Assembly. It would not be right for this House to seek to legislate for them without their consent.
For all those reasons, I ask the hon. Gentleman to withdraw the new clause.

Mr. Shepherd: I am grateful for the Minister's swift response, but I have been slightly pole-axed at this late hour to learn that there is a defect in the drafting of my new clause. Naturally, I do not want the House to support it and send it to the House of Lords, because, unlike the Home Secretary, I cannot assure the House that it will be amended in a form that is satisfactory; I have no such powers.
I am disappointed to hear that the new clause is defective and, for the moment, I accept the Minister's judgment on that. The issue will be pursued in another place, because, as my hon. Friend the Member for Grantham and Stamford (Mr. Davies) pointed out,


the availability of, and access to, manuals is important for people to understand their rights and where they stand in relation to the law. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Order for Third Reading read.

Mr. Straw: I beg to move, That the Bill be now read the Third time.
I will not detain the House by more than a couple of minutes. One of the paradoxes of the discussions that we have had—and great discussions they have been—is that, unlike many debates about Bills on which there is a clash of argument about the principle, everyone, I believe, agrees that we need a Freedom of Information Bill. I would therefore find it extraordinary if anybody voted against Third Reading.
In what I hope is a spirit of generosity, I welcome the conversion of many Conservative Members on this issue. They have come a long way even since the general election, when we were told that freedom of information Bills were simply the domain of left-wing eccentrics. The hon. Member for Grantham and Stamford (Mr. Davies) is welcome to the fold.
This is an important Bill. It fulfils one of the important manifesto commitments that we made at the general election. It has genuinely been improved as a result of discussion and debate in Committee, and on the Floor of the House over the past two days. I commend it to the House.

Mr. Hawkins: At this late hour, I want to respond with only one or two points. When I paid tribute much earlier to the hon. Member for Leyton and Wanstead (Mr. Cohen), I referred to a document that was prepared by the Campaign for Freedom of Information and that mentions responses to the Government's Bill that are still relevant on Third Reading.
The document quoted not my words but an editorial about the Bill. It said that
so long as the Commons public administration Committee, chaired by Dr. Tony Wright, remains troubled about the Bill, the Commons ought to be troubled too.
The real test of this Bill will come in Committee, where, according to usual parliamentary practice, Labour's legion of doubters should be sturdily represented.
They were, and not least by the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). It continues:
If the Bill remains as inadequate as we still think it, a wider range of dissenters will have to stand up for their doubts at report stage.
They have done so, led by the hon. Member for Cannock Chase (Dr. Wright) and the hon. Member for Stoke-on-Trent, Central. The editorial in The Guardian continues:
More freedom, of some information, won't do. We want the full month they promised us when they were seeking our votes…Two years in power has finally suppressed the clearest ideal that Labour formed during its years of impotence. The freedom of information bill marks its definitive transition from a party dedicated to changing the world, into a Government determined its own world shall not be

changed…The purpose of this reform, as canvassed in opposition, was to alter the balance of power between citizen and state…The bill now disgorged is a spectacular betrayal of any such idea.
The Home Secretary has turned himself into, not Houdini, nor a character invented by Lord Archer of Weston-super-Mare, but Jim Hacker.

Dr. Tony Wright: I was not going to say a word on Third Reading, but I have been provoked by the speech I just heard. The hon. Member for Surrey Heath (Mr. Hawkins) got the tone wrong last night and he has got it wrong tonight. All that was required from the Opposition during consideration of the Bill on Report was a little humility, to reflect that the fact that the Conservatives consistently opposed any such legislation throughout all its years in office.
My first experience of serious business in the House of Commons was as a member of the Standing Committee on the private Member's Bill promoted by my hon. Friend the Member for Stoke-on-Trent, Central (Mr. Fisher), the Right to Know Bill. We won all the arguments in the Committee, but then the Government of the day ruthlessly moved to kill my hon. Friend's Bill in the Chamber. I always carry with me that example of the Conservatives' lamentable record on freedom of information. The Conservatives have not shown the required degree of humility, with the honourable exceptions of some hon. Members I see sitting over there—one of the virtues of the process we have just been through has been what someone described as the progressive coalition.
The Labour party has been committed to legislation on freedom of information since 1974. In the past, Oppositions have said that they would legislate, but they have failed to do so once in government. What is unique about the current Government is that they are doing in government what they said they would do when in opposition. Those who say that the Bill is so lamentable that it would be better not to have it at all are wrong. The Bill has defects and flaws; we have corrected some of those through our consideration of the draft Bill and in Committee; we have corrected yet more in the past 24 hours, and Third Reading is not the end of the story.
Even at this unearthly hour, let us celebrate this historic piece of legislation. Let us congratulate the Government on introducing it. Let us then increase our resolve to make it as good as it can be.

Mr. Maclennan: That we are debating the Bill is in large part owed to the effort of many heroes of Opposition, among whom I count the hon. Member for Stoke-on-Trent, Central (Mr. Fisher), Roy Hattersley, my hon. Friend the Member for Roxburgh and Berwickshire (Mr. Kirkwood) and the hon. Member for Aldridge-Brownhills (Mr. Shepherd). That the Bill is a Government Bill is due to the deliberations that took place prior to the election between the Labour party and the Liberal Democrats, in the effort to gain wide support throughout the country for a change that had defeated parties in government in the past. That dialogue was maintained after the election, and for that we are grateful. I believe that it has had some merit and produced some benefits. There have been useful exchanges of view.
I must admit candidly that I sometimes felt that the entire process was going backwards. Most of us could have signed up with enthusiasm to the White Paper introduced by the right hon. Member for South Shields (Dr. Clark). We would simply have tinkered at the margins of his Bill, whereas in the present Bill, as the hon. Member for Cannock Chase (Dr. Wright) honestly admitted, there were real flaws, and they still deface the Bill.
There are departures from the Government's expressed intentions, particularly the intention expressed in the White Paper that decisions on disclosure would be based on a presumption of openness. That is the principle from which the Government have been stepping back throughout. The right to know has been so hedged round by conditions—by categories of exemption—that were explicitly and almost outspokenly rejected by the Government in their White Paper.
Those backward moves have been a depressing feature of the process. At the same time, it is honestly fair to the Home Secretary to say that although he started from a very different point from his right hon. Friend the Member for South Shields, he has courteously and openly allowed us to make our case and our arguments. The door has not been closed.
We have seen definite and substantial improvements, but many are still required if the Bill is to fulfil the hopes that were well expressed by the Prime Minister in the preface to the Government's White Paper, in which he wrote about changing the relationship between the citizen and the Government. If that is to be more than a pious expression of hope, a rebalancing of the Bill is required. I hope that we shall have an opportunity to return to that before too long.

Mr. Shepherd: I had hoped that the Third Reading of the Freedom of Information Bill would be one of the greatest occasions of my life. [Interruption.] The man is a foolish man who shouts out, "It is", when I have an argument to set out and a case to make. It is absurd for a Whip to tell me what I should think or say. [Interruption.] I apologise if I misdirected my remark, but let us have none of that.
This was a great occasion. From 1974 onwards, the Labour party was committed to freedom of information, for it had seen that in such a measure lies our emancipation as a people. It was a changing of the guard from those who had been cursed by war, who knew the need for secrecy and became obsessive about it. That secrecy filtered through every layer of our society.
I had hoped, and I believed, that when the Labour Government proclaimed that they were committed to a Freedom of Information Bill, we would have one. There was no reason to dissent from that judgment. The White Paper gave us every expectation and every reason to believe that it would be delivered.
I cannot dissent from the generality of the observation that in some measure the Bill does advance freedom of information, but it is not what we understood in those brave and bonny days, when a White Paper was published. It is not. I would not want the Bill to go from the House in its present form, and I would not want the other place to think that it was finished business.
Having marched through the Lobby on these issues over many years, I believe that deep, deep within the feeling of the House, and certainly within the new generation that marches, marking the changing of the guard for each and every Parliament, there is a desire for true freedom of information that will give us equality with an Executive. It was within our grasp; it may still be within our grasp. However, as it leaves this House—in a defective state, as the Home Secretary admits—to be amended in another place, I ask why it could not have been created in our House, the democratic, elected and accountable Chamber in our Parliament.

Mr. Quentin Davies: I shall be extremely brief. I simply want to make three rapid points. First, we owe a great debt to the cross-party group of colleagues who played such a major part in keeping the campaign going for many months and in the debates of the past 48 hours. In particular, I thank my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), the right hon. Member for South Shields (Dr. Clark) the hon. Members for Stoke-on-Trent, Central (Mr. Fisher), and for Cannock Chase (Dr. Wright) and the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).
Secondly, the Home Secretary, who was again in a conciliatory mood, said that we had had a great discussion in the past two days. I agree, but it has not achieved the results for which I hoped. Perhaps the most momentous and salient aspect of the discussion was that, apart from Ministers' contributions, not a single contribution was made in favour of the Government's position. It is extraordinary to hold a debate for two whole days on a matter of such enormous interest to the House—the Chamber is still full at 1 am—when no one was inspired, not even members of the Labour party with its massive majority, to support the Bill in its current form. I trust that the moral of that will not be lost on those who need to note it.
Thirdly, the Bill is not worse than nothing; it is better than nothing. I said that about the previous Government's non-statutory code. However, as the hon. Member for Cannock Chase said, this cannot be the end of the story. Although the Bill is better than nothing—I am sure that many colleagues agree about that—it is far from being an adequate Freedom of Information Bill.
We live in a democracy, and the Government depend on the people and are accountable to them. A proper Bill would therefore begin with a purpose clause, which stated that information should be available to the public unless the Government explained precisely why, in the national interest, it should not be revealed. The onus should be on the Government to explain.
The Bill should provide for a proper method of dispassionate arbitration when the Government refuse to divulge information, to ascertain whether that refusal is genuinely in the national interest. The Information Commissioner should have that power. Without fulfilling those conditions, the measure is not a Freedom of Information Bill worthy of the name. We do not have such a Bill, but I hope that, in another place, we may be able to build on the small foundations that we have been able to lay in the past two days and create a satisfactory measure.
Against the background, it would be churlish and foolish of us to kill the Bill and not allow their lordships to do the task that, despite all our efforts, is sadly uncompleted.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.

DELEGATED LEGISLATION

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

SOCIAL SECURITY

That the draft Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 2000, which were laid before this House on 20th March, be approved.—[Mr. Jamieson.]

Question agreed to.

British Sign Language

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Jamieson.]

Mr. Tom Levitt: It is appropriate that this Adjournment debate on British sign language should take place after a two-day debate on freedom of information. As I shall show, sign language could be considered to be a freedom of information issue. I must first acknowledge that we are following the path that has been taken by the Welsh Assembly and the Scottish Parliament, which debated sign language on 30 September 1999 and 16 February 2000 respectively. Both debates took place at an hour rather more conducive to argument and discussion.
This is the third debate that I have initiated on issues to do with deafness and I believe that there is scope for many more. However, I want to focus on British sign language and its use, the provision of interpreters and the right of those for whom it is the first language to have it recognised in a practical, effective and useful manner. We need first to explain exactly what we are talking about.
British sign language is a genuine language with its own grammar, tenses and expression, but a year or so ago in the other place this was said:
It is correct that…sign language…is a distinct language, but it is based on…English.—[Official Report, House of Lords, 18 February 1999; Vol. 597, c. 749.]
It is not. Sign language is a genuine language, but not an international language, which has also been suggested. Indeed, its history mirrors that of spoken languages and each country has its own. There are regional sign language dialects in this country, as one would expect of a spoken language. In particular, the ways of describing colour and counting differ considerably.
Sign language is a visual language in every respect. It is partly iconic, partly abstract and partly derivative. It is capable of sensitivity, great detail and great delicacy. It is a language not only of the hands, but of the whole upper body. It is easy not only to misunderstand the effectiveness of sign language as a language, but to consider it not to be a language at all. It must not be confused with finger spelling, which is simply the spelling of the English language on the fingers, or with sign-supported English, which is the speaking of English with the support of signs borrowed from sign language.
Also in the other place, a former chairman of the BBC board of governors said that
individuals have their own system; there is no common language in signing.—[Official Report, House of Lords, 6 December 1999; Vol. 607, c. 1133.]
Again, that is simply not true, but it is typical of the misunderstanding that leads to sign language not having the recognition that it richly deserves. Sign language is the first language of one in every 1,000 people in this country. At least 50,000 people have British sign language as their only or main functional language. That is more than the number who have Welsh, Cornish, Scottish Gaelic or any other indigenous British language as their first language, although it represents only a fraction of the 8 million people in this country who have impaired hearing.
We must also recognise that people who are born deaf or who lose their hearing profoundly before developing speech and spoken language have to rely on a language that does not depend on hearing. They should be given opportunities to develop their first language—sign language—wherever possible. We could have a different debate about the role of sign language in education, but it helps to explain why people who cannot develop language skills through hearing have to do so through other senses. They perhaps tend not to grasp English as well as hearing people unless they are given the facility to develop their first language. I can provide an example.
A friend of mine—a deaf man—was told that he had the best voice and was the best speaker of English in the whole of a school for the deaf. He was very proud when he left and went straight to a job on a shop floor. However, on the first day, his voice provoked so much ridicule and teasing from his workmates that he did not speak again from that day on. That was 40 years ago. He has not tried to speak aloud ever since. It was unreal and unreasonable to expect someone whose first language was sign language to be able to function in the world of speech.
Until 20 years ago, sign language could only be used locally: there was no way in which it could be used to communicate over distances. It was used on television occasionally, but only the advent of videotape, signed television and cheaper video cameras enabled people to use their own language to communicate over distances. Then it was as easy as sending a letter.
Let me say a little more about the grasping of English by those who have been profoundly deaf since birth. It is often assumed that all deaf people can lip-read, but they cannot: if someone is not speaking properly, that person cannot be lip-read, and people for whom English has never been the first fully functional language cannot be expected even to start using the complex skills that lip-reading requires.
There are 50,000 people in this country whose first or only functional language is sign language. They are profoundly prelingually deaf. Most are born to hearing parents. In many cases, meningitis in the early years of life has been the cause; there may be genetic reasons, or reasons connected with rubella during pregnancy, for them to have been born deaf.
The gentleman I met in 1986 who opened my eyes to the world of signing around us was born deaf, and went to a deaf school where he learned sign language. His parents were told that sign language was just a phase that he was going through. They were told that it was not worth their while to learn the language of the deaf because, after all, it was not a proper language. They were told, in essence, that they would never, and should never, have a language in common with their son. Again, that was 40 years ago, when he was at school.
I am afraid that some of the attitudes that I have described are deliberate, rather than arising from negligence.
I believe that all children must be given the opportunity to be fluent in their first language, and in the language of the community in which they grow up. There is a slight incongruity, in that, as I have said, most profoundly deaf children are born to hearing parents. Nevertheless, if they have no hearing they cannot be expected to function fully in a hearing world during the process of language acquisition.
Let us assume that a person grows up developing sign language and living in a deaf community. After all, deaf communities in this country tend to centre around areas in which services to deaf people are well advanced. They are thriving and lively communities, often built around deaf clubs, in which the person who speaks is the odd one out and sign language is, as it were, the lingua franca. How, then, do we bridge the communication gap between what those people need in order to function as citizens, and the language of the society around them?
Unfortunately, according to the 1998 figures, there were only 102 trained and qualified working sign-language interpreters for those 50,000 people—20 fewer than 10 years earlier. The current total is only about 132, plus 170 training to be interpreters for the whole of England, Wales and Scotland. There are 132 qualified interpreters for 50,000 potential clients.
It is essential for deaf people to have access to high-quality interpreters when they face life-or-death experiences such as getting a job, going to the doctor, going to hospital, going to court or being interviewed by the police.

Ms Candy Atherton: In my rural area of Camborne, which has a large deaf community, there is a real problem with access to interpreters. People have to travel up to 150 miles to take part in debates or go to the deaf club. It costs me nearly £250 to hold a surgery to which my deaf community can have access.

Mr. Levitt: I commend my hon. Friend for holding surgeries in a deaf club—and for doing so at considerable cost to herself because of the need to bring interpreters such a long distance. I hope that other hon. Members will follow that model, and that we can a find a way of ensuring that cost does not make it difficult for hon. Members to provide that service to their communities.
As with any language, it takes years to become fluent in British sign language. Many of today's interpreters are the hearing children of deaf sign language-using parents. In 1997, 18,000 people undertook the stage 1 sign language qualification, but only 2,500 went on to stage 2. Of those, only 250 went on to stage 3. The pool of those whom we can train as interpreters for work in the community is remarkably small. There is also virtually no career structure for interpreters, many of whom have to work as freelancers. Moreover, there is no formal training in sign language for hearing people under 16. Therefore, the opportunities and facilities not only for developing sign language to a high level, but for career development as a sign language interpreter are very limited.
The British Deaf Association is conducting a campaign for formal recognition of sign language, and suggests achieving that recognition by means of the European charter on minority languages. Although my understanding is that, in its current form, the charter does not apply to non-written language, the most important objective is that British sign language should be recognised in practice rather than theory. People should have access to an interpreter—to information in their own language—when and where they need it.
I tell my hon. Friend the Minister—with whom I was very proud to serve on the Committee that discussed the Disability Rights Commission Bill—that the excellent


disability rights legislation that the Government have brought into force will increase demand on interpreters, on signed video information and on CD-ROM-based information containing, for example, sign language avatars.
If we are to ensure deaf people's human rights, it is essential that they have access to their first language. Access to high-level sign language interpretation is not only reasonable and justifiable, but it is essential in life-and-death circumstances.
The Government have made progress on the sign language issue in several ways. As originally drafted, the Representation of the People Act 2000, for example, provided that someone who wanted assistance with voting in a polling booth had orally to request assistance from the presiding officer. The Government accepted an amendment moved in another place that provides that, for those who cannot use speech, that request may be made in writing.
The use of video recorded interviews in police stations should be increased. It is essential in matters involving sign language users. In cases involving deaf people, it should be obligatory throughout the legal system to include the sign language interpreter in the video recorded interview. That is the only way in which we can check that what has been recorded as being said is what was meant, and it is the only way in which we can ensure justice for deaf people.
We also have to make progress on the right of deaf and hearing-impaired people to sit on juries, which is another issue that has been raised in the House before. At Question Time, the Prime Minister himself has said that that is a legitimate objective. I understand that the British Deaf Association has been in discussions with the Lord Chancellor to see how best to achieve that objective.
The Disability Discrimination Act 1995 requires reasonable adjustment in employment and the provision of goods and services. Poor, inappropriate or absent interpreting is not reasonable. I also accept that 100 per cent. interpreting on demand—having an interpreter on every street corner—is not reasonable. However, it is reasonable to include British sign language in any corporate public communication strategy. BSL can be used on videos or CD-ROMs, with human interpreters and with staff with signing qualifications. Deaf people whose first language is sign language can be employed in circumstances in which they are of particular help to fellow deaf employees or service users.
There must be a proper system of booking sign language interpreters at a reasonable cost, given reasonable notice. That should be paid for by the state when circumstances demand it. The Lord Chancellor already pays for all sign language interpreters who are needed in the courts.
It is essential to have interpreters on call for emergencies. I heard a story about a profoundly deaf girl who was hurt in a car crash and taken to hospital. She said afterwards that the experience in the hospital was far more frightening than the car crash, because at least in the crash she could understand what was happening once she had had a look round. In the hospital, nobody could tell her what was happening in a language that she could understand. It is particularly important that there should

be high levels of deaf awareness among staff in front-line service provision where British sign language is not available.
This debate has come from the heart. I am delighted to say that my first debate on deaf awareness is available on video with a sign language insert on the screen from the Royal College for the Deaf in Derby. I believe that I am the only Member of Parliament who has studied British sign language. As a trustee of the Royal National Institute for Deaf People, I have spent many years campaigning on the civil rights of deaf people. I know that my hon. Friend the Minister is well disposed towards my arguments. I am only sorry that the rules of the House do not allow me to have a sign language interpreter standing at my side so that television viewers can appreciate not just what I have said, but, perhaps more importantly, how my hon. Friend the Minister responds.
I am grateful for this opportunity. I look forward with great hope and expectation to hearing not just sympathetic, but constructive and positive proposals from my hon. Friend.

The Parliamentary Under-Secretary of State for Education and Employment (Ms Margaret Hodge): It is worth observing that there were nearly 500 Members in the House to discuss the Freedom of Information Bill that we have just passed to another place. There are now a bare half a dozen of us here to talk about an issue of key importance that provides freedom for a large minority group of those who are deaf or have a hearing impairment and for whom sign language is their first language. That is a sad reflection on the House, but even at this late hour there are many people outside following our debate.
I congratulate my hon. Friend the Member for High Peak (Mr. Levitt). He is well known for his commitment on disability issues, particularly his interest in deaf people. He is a trustee of the Royal National Institute for Deaf People and undertook his Parliament Industry Trust fellowship with Leonard Cheshire. His contribution to disability causes is warmly acknowledged and recognised. I am grateful for the great support that he gave to my work on disability issues before he became a Parliamentary Private Secretary.
My hon. Friend has raised a number of important issues that I want to address. More than 8 million people in this country have a hearing impairment, of whom 670,000 are profoundly deaf. Of those 670,000, 50,000 use British sign language as their first language. The recognition of the language is crucial to facilitate communication for them and is a civil rights issue.
Since I have had ministerial responsibility for disabled people, there has been a strong lobby on the recognition of BSL, with particular focus on specifying the language in the Council of Europe's charter for regional or minority languages.
As my hon. Friend knows, officials and lawyers are arguing over whether we can give recognition to BSL and whether it can be classified as a minority language under the terms of the charter. I have assured my hon. Friend and others that the Government will explore the matter with other parties in Europe, once we have ratified the charter, and I repeat that commitment now.
The charter has now been signed. It will he ratified, by means of the processes of the House, in the near future, and then we shall open the discussions. A range of


difficulties will have to be overcome, and this country's lack of a written constitution creates additional problems in the recognition of official languages, including BSL.
In preparing for this debate, I have gathered information about the action being taken by other countries. The Finns, the Swedes and the Danish are probably the most advanced in giving formally recognition to BSL, but other countries are also making advances.
The Dutch Government set up commissions in 1995 and 1997, and reports and recommendations have been passed to that Government. The federal Government in Germany is discussing the matter with the Lander, and Westphalia has commissioned a report on the legal implications. The Portuguese approved an amendment to the Portuguese constitution covering sign language in 1997. In Belgium, associations for deaf people are forming close links with political parties with the aim of speeding up the process of recognition. Although sign language is not recognised in Italy, a number of laws include a specific reference to the use of a sign language interpreter.
On reflection, therefore, I give my hon. Friend the undertaking that I will ask officials to look again at what we can do, outside formal recognition in the charter, to achieve the objectives that he set out—that is, the acceptance of the language's legitimacy, its systematic use by all authorities, and the willingness to allow submissions to be made in that language. I will also write to the Disability Rights Commission as soon as it opens its doors on 25 April, asking it to explore the issue further.
I can also tell the House that I recently wrote to all Government Departments to find out their views about what they might do with regard to sign language. Responses have started to come in, and I thought that my hon. Friend and the House would like to know what I have heard.
Progress is being made. For example, as my hon. Friend said, since April 1998 the courts have operated a system by which any form of communication support can be booked for parties involved in civil or family proceedings. I was also pleased to see that users of the electronic version of the community legal service directory—the "Just Ask" website—can select to choose an agency offering BSL as one of the search criteria. That directory contains more than 15,000 entries, and the site was launched on 3 April.
The Benefits Agency has set a standard for communicating with people who do not speak English or Welsh, and it applies to users of other languages, including BSL. When it is necessary to interview customers who need interpreters but cannot or do not wish to provide their own, the Benefits Agency makes arrangements within 24 hours for the provision of such an interpreter.
Further examples of which the House may be aware include the signed video magazine programme "Public Scene", which is produced and distributed by and on behalf of Government Departments by the Central Office of Information. In addition, the Department of Health produces BSL-signed videos when the information involved is particularly relevant to deaf people on issues such as direct payments and the long-term care charter.
I was also pleased to learn from my write-around that the Ministry of Agriculture, Fisheries and Food is currently cataloguing videos that include titles filmed in BSL. My own Department has produced a BSL version of the disability rights taskforce report.
My hon. Friend mentioned education. We believe that choice is crucial for deaf children and their families in connection with special educational needs. We are strengthening the process, as my hon. Friend knows, and emphasising inclusion in legislation that we intend to introduce later in the Session.
It is for local education authorities to decide on the provision in the light of local circumstances and the child's need. However, we have established 11 special educational needs regional co-ordination projects covering the whole of England. Their aim is to establish a more effective co-ordination across local education authority boundaries, in particular for low-instance disabilities. A number of those projects are studying sensory impairments such as deafness. The aim is to ensure some consistency of provision throughout the country. I am sure that my hon. Friend would agree that we want to ensure that we provide a choice that suits the needs of children and their families.
My hon. Friend mentioned disability legislation. The Disability Discrimination Act 1995 is having an impact. The code of practice that we published on the changes in the provision of goods and services, which was published in October, contained a number of examples showing where BSL would be an appropriate adaptation that should be made to ensure that people were not discriminated against. For example, a hospital would be expected to have a BSL interpreter for an appointment. That would be considered a reasonable step in a large hospital, although it might not be reasonable in a doctor's surgery.
My hon. Friend spent some time talking about interpreters. There has been a shortage and in my desire to do something practical to ensure that BSL can become a real language to many more people, without getting involved in the legal niceties of what we can or cannot do under particular charters, I am trying to tackle that shortage.
We have undertaken some research, which I have been anxiously awaiting. Again, in preparing for this debate, I asked for the results of the research but was told that it had been delayed because of the illness of one of the academics undertaking it. The purpose of the research was to identify the gaps and whether we could take action to ensure that existing interpreters were better used. I will ensure that my hon. Friend has access to that research as soon as it is with me and has been published.
In the meantime, I have been talking to both the Royal National Institute for Deaf People and the Council for the Advancement of Communication for Deaf People. I propose to try to find a shorter-term solution to the undoubted shortage of interpreters and to set in place a longer-term solution that will provide us with a steady stream of interpreters to meet what will undoubtedly be a growing demand.
Whatever we do, it will not have a totally immediate impact, simply because, as my hon. Friend knows, it takes


time to go through the long training and qualify to become an interpreter. I can assure the House and my hon. Friend that, by Easter, which is not too far away, thank goodness, I hope to be able to announce funding to provide an urgent boost to the number of trained BSL interpreters. That will be the first step. In the second step, I hope to announce the first stages of the longer-term strategy and how we go forward.
Those are some examples of the progress that I have been able to make since I have been the Minister responsible for disabled people. We still have some way

to go. I am sure that this debate has helped to raise awareness of the issues and has helped me, officials in the Department and those in the community at large to concentrate minds.
I very much hope that, working together with those in the community for whom this matter is important, and with my hon. Friend and others who have an interest in the issue, we can make real progress so that we can break down the barriers that prevent those deaf people whose first language is BSL from taking a full part in civil society.

Question put and agreed to.

Adjourned accordingly at twenty-four minutes past One o'clock.